How To Properly Handle HOA Violation Notices
One of the battles that homeowners living in an HOA community face is how to properly handle situations when the homeowner receives a notice of violation from the homeowners’ association. Understanding what the association’s board must do in terms of providing adequate notice, what rights a homeowner might have to a hearing and what other processes must be followed by the homeowners’ association are important. In general, a concept of due process, meaning notice and an opportunity to be heard would apply to rules violation processes involving homeowner’s associations. This article is designed to walk members of a homeowners’ association through the processes involved in rules violations.
Right to Notice of Violation
The first step in the process of a homeowners’ association exercising its authority to enforce its rules and/or Covenants, Conditions and Restrictions (CC&Rs) involves proper notification to the homeowner. Depending on the state in which the HOA community is located, there can be differences in how homeowners must be notified of violations. Some states have laws that actually govern how notices must be given, what they must contain and how they must be served. In other states that have less formal legal regulation of the rules enforcement process, the main governing document that would determine how notice must be given is the homeowners association’s Declaration and the Bylaws. Most Bylaws would specify that homeowners must receive written notification of a violation and typically would also give the owner a reasonable opportunity to correct the violation before the process goes through the entire hearing procedure. There can also be rules that govern how specific a notice violation must be in terms of providing the homeowner enough information to know how to adequately respond to the violation. An example of this might be when a homeowner has failed to properly mow his or her yard or something of that nature. Larger issues might involve instances where an HOA member has installed or constructed something on his or her property that violates either the rules or the CC&Rs. At a minimum, most state laws that provide for specific notification requirements are designed to ensure that homeowners receive a reasonable due process which generally begins with proper notification so that a homeowner can be adequately informed of the nature of the violation and have an opportunity to respond to it. Homeowners need to be sure to be familiar with either applicable state law that governs what the notices must state or the associations Bylaws and rules which may also outline in detail the notice procedure that is supposed to be followed.
Right to a Hearing
After a homeowner receives a notice of violation, typically the next step in the process is a hearing before the HOA Board of Directors. This concept comes from a basic set of rules that is embedded in many areas of the law which is that when there is an alleged violation, the member of a homeowners’ association must receive adequate notice and also be provided with an opportunity to be heard with regard to the violation. Typically, there is an advance notification requirement also so that the community member can have an adequate opportunity to plan for and attend the hearing. This is especially helpful in cases where a member of an association has a reasonable argument concerning the alleged violation and would like the opportunity to present evidence that the association’s Board of Directors may consider. This process again would be determined by either applicable state law which can vary widely or by the Bylaws of the homeowners’ association. It is critical for HOA members to understand what the Bylaws provide for as well as the community rules in order to be adequately prepared for a hearing.
Once the hearing is held, typically the Board of Directors will render a decision concerning the notice of violation that was issued. That decision could range from a finding that there was no violation, to the imposition of a fine against the member for non-compliance, to potentially requesting that the member take certain action which might especially be the case when the issue is the removal of some item that was installed that violates the HOA Rules.
In states that do not have an organized system for dealing with disputes involving homeowner associations, the next step could be district court. In states that do provide for an arbitration or other process for dealing with these matters, then the next step may involve an arbitration panel or something similar depending on the outcome of the hearing. If a homeowner is not happy with the outcome in a district court action, then the next step could be appealing to the state court of appeals or supreme court. In the meantime, there may be questions about how the violation would be addressed. An extensive appeals process such as this would really only make sense in cases of significant violations and where there is no other means to resolve a dispute.
It would actually be in an HOA’s best interest to informally attempt to discuss a rules violation with a member before embarking on the formal notice process. However, sometimes that simply just doesn’t happen and there is no option except pursuing the formal option.
Right to Appeal
Homeowners who are not satisfied with the outcome of a hearing process, typically would have appeal rights which are either determined by state law or by the Bylaws and rules of the homeowners’ association itself. If there is no appeal process within the state law, that may involve an arbitration board for homeowner associations. If there is no such state process, then next step may be a court battle. This would likely involve the homeowners’ association first filing suit for enforcement of the rule and/or CC&Rs. This would be just like any other civil litigation process and would be governed by state rules on civil actions. This of course is the last place that any community member or association wants to be. The process is expensive, time consuming and leads to bad feelings amongst members of the HOA who at the end of the day are still neighbors. Thus, this is not something that should be embarked on lightly.
HOA’s Obligation to Make Decisions That Are Reasonable and Non Discriminatory
Among the most important considerations for both community members and homeowner associations alike is that enforcement of rules and CC&Rs must be done on a reasonable and non-discriminatory basis. What this means is that there needs to be a degree of consistency in when the HOA seeks to act upon perceived violations. In addition, this also means that the association’s Boards of Directors cannot act in an arbitrary or unreasonable manner in issuing notices of violation.
Circumstances of Lack of Compliance by the HOA With Notice and Hearing Requirements
What rights do members have in the event that they either haven’t received proper notification under either state law or the homeowners association’s Bylaws? What if the hearing processes are not properly followed? If the HOA for example fails to provide the community member with adequate written notice in terms of providing enough information for the member to understand the violation or fails to follow notice procedures, often what that means is that the HOA will have to go back and reissue a proper notice with the required information or in the time frame that is required. However, at the end of the day this does not solve the practical problem and while it may in the member’s best interest to object o lack of proper notification and/or information, at the end of the day, there will still be a dispute over whatever the violation is so that may be the question about what is truly beneficial for the member. If a court battle is the next step, inadequate notice issues can of course be raised in that setting as well. However, again that does not deal with the substantive issue at hand and often just leads to all parties spending more money and the issue at hand not getting resolved to anyone’s satisfaction.
A clear understanding of the rules enforcement process is important for homeowners to ensure that they have received adequate due process in terms of notice and an opportunity to be heard. When appropriate, a challenge to the process can serve to protect a homeowner’s rights and property interests. It can also protect members from a homeowners’ association that has overstepped its bounds or has only selectively enforced various rules and regulations. From all of the information contained above, it should also be apparent that common sense should be exercised both by homeowners and HOA boards of directors to find reasonable and rational ways in which to resolve rules violations that fall short of a formal process such as that outlined above. The fallout that can occur on both sides from such an elevated level of process and involvement generally does not serve anyone’s interest and serves to tear apart rather than build relationships between members of the homeowners’ association.