Is Your Co-op / Condo Board Overregulating Rule Violations?

"Overregulating is just as bad as not enforcing your governing documents," explains Robert M. DeNichilo, an attorney at DeNichilo & Lindsley who specializes in representing community associations. "Enforcement has to be reasonable. Is it reasonable to not give someone a chance to rectify a situation before you're immediately on them?"

When Vigilance Turns into Pickiness

Yet violations are violations, right? So why shouldn't you just kick out violation notice after violation notice if you see even a minor infraction? Because that can dampen community spirit.

"It fosters the negative image that many people have of [boards] because they're overregulated," says DeNichilo. Co-op / condo boards "are supposed to be preserving and maintaining property values. The whole goal is to make it a nice place to live. By overregulating, boards aren't doing that. That's why it falls into the category of unreasonable enforcement of CC&Rs" — the "Covenants, Conditions and Restrictions" that are common, under one name or another, in condo governing, like the proprietary lease in co-ops.

Overregulation fosters the negative

image many people have of boards.

Of course, your board has to be aware of violations. "I think it's good to be vigilant, but you can certainly take it too far," agrees attorney Matthew A. Drewes, a partner at Thomsen & Nybeck. "It's a reasonable concern for an association or board to make sure they're not allowing violations to go unchecked for lengthy periods of time and making sure there aren't noxious or harmful things being left untended."

The answer may be to make your inspections routine and expected. "We always encourage boards to do routine, community-wide inspections, unless they're responding to some kind of complaint or concern," says J. Roger Wood, an attorney with Carpenter, Hazlewood, Delgado & Wood. "In some communities it's every six weeks. I have others that are more fastidious. But I don't have any concerns about [board inspections] as long as it's what the community is expecting." Some boards are very strict, he notes. "Obviously, when you're driving by every day, there are going to be more letters. You're going to catch people before they have a chance to do anything about the problem, and that's frustrating to owners."

How to Handle Violations

You can't ignore owners' violations. But are there instances in which you can give owners a little time to fix the problem? Boards have to enforce rules equitably and consistently, notes DeNichilo. "So your actions depend on the violation. Everything goes back to being reasonable. Bagged dog poop left out is very different from someone who hasn't sought approval starting a home construction project. One you have to act immediately on. But the other, is it really worth spending on the violation? If it hasn't happened before, do you really need to send a letter?"

Drewes agrees that there are gradations of violations. "If there's a violation that's not dangerous or likely to cause panic in the streets and chaos to ensue — and the owner appears otherwise to be a law-abiding citizen — reason may say you may get away with giving them time to cure. Or you may knock on their door or call them."

He warns that, "Sometimes people get a little defensive because the board is contacting them." Describing one situation involving parking, in which a board sent letters to six owners, he says, "One of those owners has had problems with the board in the past and immediately assumed she was being singled out. There will be those misunderstandings, and the best you can do is to try to be reasonable and send a nonthreatening  communication. It might say, 'I noticed that… Please let us know if there was a reason or problem that led to that situation because we don't want to run into complaints about it.'"

But you can't ignore violations because you don't want allegations that you've waived enforcement or you're treating owners differently.

"My advice is not to disregard violations that are brought to your attention," says Drewes. "Think about whether they need to be addressed." Boards are specifically worried about issues of waiver, he says. "Your behavior should be at least adequate to show that you're not conceding a violation is OK. Maybe it's OK if it's something that occurs temporarily, but then you have to be cognizant of the fact that another owner might see the violation occurring or react negatively, thinking another owner is getting a break they didn't or conclude they don't have to comply with the rule themselves.
 
"If you don't have any written record that you followed up on the violation," he adds, "you're subject to the argument that you communicated it was OK or failed to communicate that it wasn't OK. The argument will be that Joe got a letter, but Sally didn't, and they're treating Joe differently because of some protected classification."

Explain Your Violation Process

Be sure any notices you provide also explain the entire process of hearings and fines. "If you're doing routine inspections, you should have an enforcement process to go with it so owners know what's going to happen," says Wood. "A knee-jerk board fining owners for thousands of dollars of violations before it gives owners a chance to cure — that's a problem.

"Be courteous in giving people time to correct the problem so they know the first violation isn't the death knell," adds Wood. "If you're inspecting regularly, the letters have to be equally friendly, saying something like, 'We'll come back in another three weeks, and it'll probably be fixed by then.' You'll always catch people after the infraction if you're doing routine inspections. What happens in that next step is where boards run afoul of the law and courtesy to their neighbors."

Also remember that you're not a czar. "Sometimes board members think being a director gives them powers," says DeNichilo. "But the source of the board's power comes from acting together. When board members are walking around and spotting violations, they should report them to management just like any other home owner would. Then the board would get together and review them to determine whether to send violation notices."

Matt Humphrey is president of the Alameda, California-based HOAleader.com, from which this article was adapted. A journalist and entrepreneur, he is a graduate of the Wharton School.

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