February 8, 2018

Rules enforcement is a necessary part of association life. That doesn’t mean you can’t be nice about it.

A community association can differ from a traditional non-association neighborhood in many different ways: There’s a quasi-government that makes sure the trash is picked up and the snow is plowed. There are mandatory member dues. There might be a more centralized, coherent sense of community. And there are rules. When homeowners buy into a community association, they’re agreeing to abide by certain restrictions and regulations.

This doesn’t always go over well.

For most people, their home is not only their single most important investment, it’s also their castle. In an association, the board of directors is charged with the perplexing dilemma of running the community while at the same time respecting these deeply ingrained feelings and enabling freedom of personal expression.

How does the board and management walk this line? Through a carefully reasoned and consistent enforcement process.

KNOWING THE RULES

Enforcement takes place over three basic categories: covenants, conditions, and restrictions (CC&Rs); rules and regulations; and architectural guidelines. They may seem redundant, but each category has its own area of influence.

CC&Rs are recorded documents whose provisions are inherently non-negotiable. Often crafted by the developer, they set out, in broad language, the basics of association operation and governance.

Rules and regulations are adopted by the board and may be modified, as the board deems appropriate, without a member vote. They are much more specific than the CC&Rs. An example might be pool-facility restrictions that set the hours of operation, require kids to be supervised, and so on.

Architectural guidelines are generally created by the builder when the community is in its infancy and adopted by a builder-appointed board. They may be modified by a vote of future boards anytime thereafter. Architectural guidelines regulate how the community looks and is constructed, including such details as wall height within each lot, permissible landscaping, approved exterior paint colors, and location of any improvements installed in the back yard. The level of detail varies in each community and can depend on the mindset of the homeowners.

Together these three governance documents not only define the rules but also dictate how those rules will be enforced. Thus, everything you do–from notification of a violation to issuing fines–should be established within the parameters of these documents. Your decisions should also be informed by the idea of being reasonable–of softening attitudes out of respect for the emotional attachment people feel for their homes. If an appeal to common decency isn’t enough, remember that the standard of reason will come up in a court of law if a violation results in a lawsuit. So oftentimes, being reasonable is the right and legal thing to do.

USING THE FORCE

Once you have a sense of the rules, think about how you’re going to enforce them. What will be your enforcement philosophy? Zero tolerance? Don’t ask, don’t tell? Community self-policing? Each has its selling points as well as its drawbacks. So consider a fluid, flexible, highly adaptive combination that at its core is reasonable.

Committee. The cornerstone of a sound enforcement policy is an enforcement committee, which usually consists of three to five homeowners who inspect the community for infractions. Having homeowners involved in the process allows for different perspectives from people who live in the community and experience it first-hand. They may choose not to enforce some regulations or suggest that the board modify others to fit the association’s needs. The manager consults with the committee and acts on the board’s directives, because final authority always lies with the board. In fact, a board member should serve as enforcement committee chair to ensure that the board’s vision is effectively executed.

CC&Rs. Once your enforcement committee is up and running, perhaps its most formidable job will be tackling the most persistent CC&R violations, which tend to be appearance issues like un-mowed grass and chipped house paint. These more intractable CC&R cases might require a special, more regimented touch. Depending on your administrative structure, consider having a manager and a member of the enforcement committee tour the entire community once a week to check for these violations. Once you’ve identified a violation, with the approval of the board, send a courtesy notice to the homeowner. A second notice might be necessary, after which you should notify the homeowner that an enforcement hearing has been scheduled.

Notification. Smaller infractions can be addressed informally. These can include trash cans being left in the street after the designated pick-up date; a portable basketball hoop left unused at the end of the driveway after the game has ended; incessantly barking dogs; and myriad other possibilities. These cases usually warrant no more than a cordial phone call or personal visit from the manager–which has the double advantage of alerting a resident to a problem and impressing him or her with your kind, low-key, personal communication. Many times, this is enough to remedy the situation. To be on the safe side, however, document the date, time, and content of the conversation, so that, should the problem persist, you’ve established a paper trail.

If the violation is more serious, send the homeowner a courtesy notification identifying the problem and offering a deadline date for compliance or hearing attendance. Keep the tone of this first letter friendly but businesslike–and completely non-confrontational. If the homeowner doesn’t respond, don’t panic or retaliate. Send a second letter, this one more formal, again detailing the violation and announcing that failure to comply could result in an enforcement hearing. If a third letter is necessary, use it to set the hearing date. Don’t be surprised–and don’t take it personally–if it takes three letters to produce compliance.

Hearing. If a violation remains outstanding, schedule a hearing and send the homeowner a notice at least 10 days in advance, identifying the infraction and establishing the hearing date and location. An enforcement hearing is usually held in a community center (or some other common or neutral area) and conducted by the board. The hearing gives the homeowner an opportunity to respond to the violation and talk with board members face-to-face. These meetings usually foster an atmosphere of mediation in which the homeowner and the board work out a compromise.

Compromise. This is a good thing, because it usually means that each side has given up something and gotten something back in return. For example, in one of my company’s communities, an elderly gentleman lived next door to a family in which a son owned a drum set. The elderly homeowner was angered at the hours the son played the drums. Both sides were summoned to an enforcement hearing, and they resolved the problem by agreeing that the son would play his drums only between 10 a.m. and 6 p.m.

Fines. Sometimes, despite repeated notifications, hearings, and even attempts at compromise, a violation remains outstanding. In such cases, it may become necessary to impose fines or other penalties. Proceed cautiously, carefully adhering to your CC&R-regulated enforcement procedures.

If you opt to impose a fine, make it reasonable relative to the severity of the infraction. An unreasonably harsh fine might make homeowners angry and defiant; conversely, an unreasonably soft fine might not even get their attention. In either case, the result is noncompliance.

Another avenue in lieu of–or in addition to–fines is the curtailing of privileges. Perhaps you can restrict or suspend a homeowner’s rights to use the swimming pool or other common-area facilities until a violation is addressed.

Of course, it’s not inconceivable that the fines you impose will go unpaid. At this point, consider small-claims court–or consult an attorney about the possibility of a lawsuit. Again, tread very, very carefully. Have you communicated with the homeowner every step of the way? Have you been sympathetic yet firm? Have you exhausted every possible option?

THE MOD(IFICATION) SQUAD

That takes care of general enforcement procedures, good for most rules and regulations. But architectural guidelines can be their own animal. There are some similarities to the discussion above, but because architectural review defines what people can do to their homes–and, in most communities, comes with its own review committee–there are some twists, too.

Even more than other areas, architectural enforcement hinges on good monitoring. Who is doing what to their home, and is it in keeping with your guidelines? Conduct weekly home inspections and record any violations in an inspection log, then consult the log to make sure each case was followed-up. As always, be reasonable, even casual; few things are more destructive than the stereotypical clipboard-toting nitpicker.

Be proactive, too. Foster communication by sending courtesy reminders to each new homeowner two to three months in advance of installation deadline dates. The reminder should explain the process for making exterior modifications and include relevant architectural forms to make it as easy as possible.

Should a homeowner begin a modification prior to obtaining the necessary approvals, send a “cease” notification immediately, requesting that the homeowner stop all work and submit plans to the architectural review committee. If work doesn’t stop, summon the homeowner to a hearing and follow the process described above (and in your CC&Rs).

TALK, TALK, TALK

Regardless of the rule, the board and management must enforce it fairly, objectively, and with uniformity. Don’t subjectively select which rules you’ll bring to bear, or which homeowners will receive penalties. Creating an enforcement process that involves board members, committee members, and managers will help ensure objectivity.

But the most important people to involve in your enforcement efforts are homeowners. Understanding and responding to your residents will do wonders for compliance. Always remember that homeowners may be pressed with circumstances that may prevent them from complying with minor rules. For instance, one homeowner in a community managed by our firm left trash cans in the street after the scheduled pick-up date. We sent a violation letter to this first-time offender only to find out that one of the homeowner’s family members had been injured in an accident the previous day. The homeowner was very conscientious, with no previous infractions, and was frustrated by our immediate enforcement. Clearly, a kind phone call or personal communication would have been better received.

Also not to be underestimated is educational outreach. Face-to-face chats, community forums, newsletters, bulletin boards, and Web sites can help explain to your residents association operations, the reasoning behind your rules and regulations, and the benefits they carry. And social events–completely unrelated to rules enforcement–can create a forum for conversation and bonding among residents, committee members, and the board.

Yes, board members and managers have a fiduciary duty to enforce the rules and, ideally, to enhance property values. But this ideal is best achieved through creative and compassionate methods. A hard-line approach eventually will gain compliance, but when it comes to a productive, long-term outcome–a harmonious, highly valued neighborhood–the most reasonable, respectful, and courteous methods should always be your first choice.