3 Fundamental Steps An HOA Board Takes To Enforce Rules
For homeowners living in homeowners' association (HOA) communities, one of the questions often asked is what happens when HOA rules are ignored? How do homeowners' associations enforce them? Can a homeowners' association fine owners? How can members of the community respond to violation notices of HOA Rules? These are all issues that individuals who reside in communities governed by homeowners' associations and those who are considering purchasing properties in such communities need to carefully consider.
When a property inside an HOA governed community is purchased, the homeowner automatically becomes a member of the homeowners' association. With that membership comes the responsibility to abide by not only the Covenants, Conditions, and Restrictions (CC&Rs) but also any rules and regulations that the homeowners' association has put in place. Included in the HOA rules would typically be provisions that require payment of dues and often other provisions governing noise, maintenance and a whole host of other issues. It is critical for each homeowner to read and become familiar with the rules and regulations adopted by the association's board of directors. It is important not only from the standpoint of being a good member of the community association but also in terms of keeping a positive relationship between the homeowner and their neighbors. Before we go over the steps homeowners' associations take to enforce the community rules, let's understand the association's power and authority to enforce them.
Power And Authority to Enforce HOA Rules
The ability of a homeowners' association to enforce its rules and what powers it has to do so will vary based on state law and also the powers that are included in the association's Declaration of Covenants, Conditions and Restrictions and also the organization’s Bylaws and other governing documents. Thus, some of the information mentioned below will vary depending on a variety of these factors. Many community associations have a process in place that requires discussion of a violation at an HOA meeting before the association's board can take action. Others might have a written notification process for association members involved in a potential violation of the rules. This will simply depend on what the rules of the particular organization state.
Another very important thing both for the association's Board of Directors and its members is to ensure that when there are efforts to enforce rules, that consistency is applied. In other words, it typically does not go over well if the association's board only selectively enforces rules against certain members and not others. Not only does this lead to bad feelings in the neighborhood, it could also lead to legal action against the homeowners' association due to the failure to consistently apply the terms and conditions of its rules and regulations.
Step 1: Associations Levy Fines To Enforce Compliance
One option provided for in many HOA Rules is the imposition of a fine for members who fail to follow the community association rules. In some states, for example, California, homeowners' association members must be provided with a schedule of fines and fees in writing in advance and the fines and fees must be “reasonable.” The question of what might be reasonable in a particular circumstance may vary. Even in states that do not have specific laws and rules on the imposition of fines by a homeowners' association, good common sense tells us that an association's board should notify community members in advance of what a potential violation might cost them and the amount of the fine should be reasonable in light of the type of violation. Most HOA rules also provide for a notification process to homeowners before a fine is assessed. This also makes sense in that it gives association members the chance to correct a violation before being fined. Many homeowners' association rules and regulations also allow for a different fee schedule for repeat and/or habitual violators of the rules and regulations. In Florida for example, homeowners' associations are allowed to impose a fine up to $100/day per violation with a maximum cap of $1,000. This can certainly add up in a hurry although the goal of all of these things is to simply encourage community members to abide by the rules.
The process by which fines can be imposed might include committee action, notice requirements and other procedural requirements. If the homeowners' association does not follow those processes, the member might be able to successfully challenge the imposition of the fine via the legal system. There are also great variations in state law as to whether fines for violations of the rules might become liens on a property. Some states do not allow for this and require homeowners' associations to utilize a process such as an arbitration or mediation to resolve disputes over fines. If a fine is successfully imposed, the next question becomes how the fines may be collected. This will be state law dependent as well. In many states, homeowners' associations would be free to file a lawsuit or other legal action in order to collect on the fines that have been assessed against a community member. If a judgment is obtained, traditional collection procedures such as garnishment of wages and bank accounts could also be used.
Step 2: Associations Use Internal Resources To Gain Compliance
Depending on what the homeowners association's governing documents authorize, associations may utilize available resources to gain compliance with the community rules and regulations. These options typically include:
Suspension of Voting Rights
Homeowners' associations may choose to suspend a member's right to vote until he/she remedies a violation or cures a delinquency, if provided in the association's governing documents.
One question often asked by homeowners who are part of an HOA is whether the association's board can use self-help to address a rule violation. This will also depend on state law as well as the homeowners' association rules and regulations. Often homeowners' associations can use self-help to repair something that is a health or safety concern and bill the HOA member for it. Typically an advance notification to the homeowner would be required before self-help can be used.
Restriction of Access to Community Amenities
It might also be possible depending on the association's Rules and Regulations that if the member fails to pay dues as billed that access to community amenities such as a swimming pool, exercise room or other areas might be limited. Again, this would also be dependent on the rules and regulations as adopted by the HOA.
If utilities are provided as part of an HOA member’s dues, that can also be an option to utilize utility shut off to ensure compliance with dues payment. However, that is also an area that often involves a review of state law which has additional protections. The other consideration also is whether the property could be adversely affected by the utilities being turned off and whether that would actually serve the best interests of the homeowners' association.
Step 3: Associations File Legal Actions To Enforce Compliance
As mentioned above, sometimes legal action is required in order for a homeowners' association to enforce rules and regulations against the members. However, in most states, there are processes and procedures that try to keep such disputes out of court for example by requiring mediation or arbitration as an option. However, sometimes at the end of the day, a court battle will result. In some cases, if a member fails to cure a violation after ample notices, an association may choose to file an enforcement action against the member to gain compliance via an injunction order from the Court.
Moreover, in many states, if an HOA member fails to pay fines when due, a small claims or other legal action can result. If that case results in a judgment against the homeowner, that typically also results in a judgment lien against the real estate of the homeowner. All of this really translates into one simple concept – it is much better for both the HOA member and the homeowners' association to find other ways to resolve fines and other disputes that do not involve legal action. No one enjoys spending time and money litigating over this type of issue and frankly, most judges are not huge fans of it either. Thus, both sides are well served to avoid litigation of HOA related issues.
Options for Homeowners to Proceed Against an HOA for Lack of Maintenance
Another related issue arises when the homeowners’ association fails to provide the services and/or maintenance that it has agreed to provide to its members in exchange for their payment of dues. For example, snow removal, lawn care, exterior maintenance, and related items. Typically the HOA rules and regulations specify what items must be provided in exchange for payment of dues. If the homeowners association fails to do this, the member may have a cause of action for breach of contract against the homeowners' association. Most rules will provide a process by which members must notify the homeowners' association of a failure to provide the agreed-upon services. This has often arisen on a large scale basis when there have been HOA communities affected by foreclosure and abandonment. Sometimes the homeowners' association essentially ceases to operate and/or does not have sufficient dues-paying members to provide the agreed-upon services. In this case, the member might choose to stop paying dues as a self-help remedy or initiate legal action. However, in a case where the homeowners’ association has essentially stopped operating, recovery of amounts owed is highly unlikely. This is another reason that homeowners considering purchasing property in an HOA community that has a large number of vacant properties should do so with great caution.
Rules and Regulations in an HOA community form an important part of making the community experience good for all members. A thorough review of what the rules require from members is a good place to start. Thereafter, understanding your rights and responsibilities when it comes to HOA rules, how they can be enforced against you as a member and also what you can do if you are not receiving the proper services from your homeowners' association are all of critical importance. Ultimately the goal is to have a trouble free and smooth living environment that works to preserve the value of the properties in the community. With everyone’s combined help, that can be a more realistic goal.