HOA Rules Enforcement Guide Anderson SC
HOA Rules Enforcement Guide
by Richard Thompson
One of the functions of a homeowner association (HOA) is to enforce certain rules and covenants. It's good to periodically review old practices to confirm that your HOA runs an effective rules enforcement program.
Generally, it is the board's fiduciary duty to enforce the rules. But the board has some latitude when and what to enforce based on judgment. The key is for the board not to be capricious, selective or arbitrary in how it handles enforcement. It is impractical to expect that a board can maintain absolute vigilance and catch every rule violation. Instead, the board should react appropriately when informed of a violation by a reliable source.
Here is a list of the typical remedies available to enforce rules:
1. Impose a Fine. This power is typically derived from the governing documents. A fine can be monetary or a suspension of privileges (like pool or clubhouse). Monetary fines can be escalating (like $5/day until cured). Suspension of privileges is only effective if the member actually uses the amenities.
2. Impose a Lien. If a fine is not paid, the HOA usually has the right to file a lien against a member's HOA property. This may not immediately get the fine paid but in most cases, the threat of filing a lien alone will. The HOA is entitled to attorney, collection and related fees as well which will increase the amount owed. This is also a great incentive to getting the fine paid early.
3. Use the Court. The HOA is always represented by an attorney since these courts have rules and procedures which only lawyers understand. Court litigation is expensive and should not be undertaken lightly. Make sure the expense and effort fits the crime. We've all read about emotion and money squandered on “matters of principle”. The board has the power to compromise when it's in the financial interest of the HOA.
4. Self-Help. The HOA can often self-help by correcting the violation directly. Examples include hauling a junk vehicle and cleaning up an overgrown lot. Rather than ratcheting up collection costs, it sometimes makes sense to take action and bill the offender. Collecting the bill may require legal action but at least the offending issue is dealt with. If self-help is contemplated, make sure to keep copies of all correspondence that warns of remedies available to the HOA and take photos for the record.
5. Mediation. Mediation can be very cost effective and less confrontational way to cure a violation when a member has dug in their heels. Mediators are trained in the art of compromise. Many jurisdications provide mediation services in the public interest that is free or inexpensive.
6. Use the Police. All municipalities have ordinances against nuisance conduct, inoperable vehicles, disorderly conduct, disturbing the peace, etc. The HOA is not responsible for every violation. Sometimes the police are better able to deal with it, especially when violence and substance abuse is involved. Let your tax dollars work for you.
7. Use a Manager. Enforcing rules on neighbors is one of the two best reasons to hire a property manager who does this professionally (the other reason is collecting money from neighbors). Managers are granted authority to identify, notify and fine. Being a third party helps since managers are less prone to favoritism.
Rules, either hate them or love them but they're with us to stay. Figure out which ones you really need, get rid of the rest and enforce the ones that remain.
Published: September 9, 2009
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