Berding | Weil - Attorneys At Law

Hate Rules Enforcement by your Community Association?

Get with your neighbors and vote it out!

Read any pundit's blog about homeowner associations and you will see a recurring theme: boards of directors over-zealously enforce the rules. True or not, I'm calling the pundits' bluff: If you don't like rules enforcement by your homeowner's association then round up your neighbors and vote it out. I don't mean dissolve the association entirely, just limit its authority to enforce certain rules and leave that enforcement to the individual owners who care the most. This has two benefits: it leaves certain disputes between individual owners to be resolved just by those owners; and it relieves the board of directors and the association from having to act as a cop.

A community association is an entity created to manage and maintain the property and represents the owners to enforce the restrictions recorded against each lot or unit. This includes architectural and behavioral rules. These are rules about how the individual lots or units can be used—such things as modifying or changing the look of your individual house or lot; what can be parked in your driveway; and behavioral rules that involve such things as noise between adjoining units.

The covenants and restrictions in the CC&Rs are always enforceable by individual owners, and while they may be, they don't necessarily have to be enforced by the association. The community association has been delegated that authority by statute and the governing documents and this delegation of responsibility can be scaled back by an appropriate vote of the owners. If they don't like their homeowners association telling them what they can park in their driveway, what kind of floors they can put in their home, or what flags they can fly on their lawn—the members can take away its authority to do that. As I have said in response to several pundits' tirades against aggressive enforcement—quit complaining. Encourage your neighbors to vote to limit your association's enforcement authority and leave enforcement of deed restrictions to any individual owner who is motivated enough to do it. Why should owners who don't care about such things be forced to subsidize those who do?

For example, noise between condominium or townhouse units impacts only the owners of those units in most cases. Rules against using hardwood as a floor covering are found in many condominium projects. But should the association be charged with the duty to enforce that restriction when no one can see it and only the downstairs owner is impacted by a violation? If there were as much concern over rules enforcement as the pundits say, then they should have no problem getting enough signatures on a petition to put such a proposal on the ballot.

But there will be serious challenges. One is a lack of interest by the owners. More likely than a general outpouring of indignation over the activities of a community association will be mind-numbing apathy. Frankly, most people don't care one way or the other.

The second challenge is convincing those owners who do care. Many owners like the fact that someone is watching out for the condition of the property and maintaining a certain level of governance over its use. These people are not likely to agree with the underlying premise that there should be limitations on rules enforcement by the association. But perhaps they would approve of just limited enforcement by the association—limited to those public issues that impact most of the members.

The third and greatest challenge will be the voting requirements to make changes to the governing documents. A majority of property owners cannot amend most documents. That requires a super majority of perhaps two thirds or three fourths of the owners. But if feelings are strong enough, and if the motivation is high enough, the documents can be amended to withdraw the association's authority to enforce certain deed restrictions that impact only a few individuals. This would leave enforcement to those individual owners who desire to do it. There is nothing sacrosanct about a community association being the rules cop. Many projects have deed restrictions but no active owner's association. My own does, and my neighbors and I just succeeded in getting a tenant to remove a big house trailer from the driveway. No association, just neighbors enforcing the rules.

Our firm provides advice and counsel to associations and boards who are considering whether to scale back their enforcement responsibilities. We also can amend governing documents to modify the association's enforcement authority in those instances where less enforcement by the association is the will of the members and we can advise the board on the vote required and the election procedures necessary to accomplish that. Where the members would like to limit their association's responsibility for enforcing the CC&Rs, they can do that, providing that enough of their neighbors agree.

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