Spring is here and that means Community Managers and Board members will be active in walk-arounds/site inspections while hoping to whip the association back in to shape after a long winter’s nap. Rule violations are always a focus in these efforts.
Melted snow un-earths pet damage to turf; holiday lights still adorn balconies; neglected exterior maintenance items that homeowners may be responsible for become apparent; “big-boy toys” like boats and RVs begin to come out and park in driveways and guest parking; kid toys and sports equipment litter patios and common areas; and on and on. While associations should be assertive and fair in cleaning up these and other rule violations, there is one area that Boards can get themselves in trouble when it comes to enforcement – adhering to their own appeal opportunities and hearing processes.
Many Declarations documents give some parameters and rights to members/homeowners when it comes to compliance and remedies in regard to rule enforcement. It is always wise to not only have a thorough Enforcement Policy (warning, first fine, second fine, etc), but also an appeal and hearing procedure as part of the Rules & Regulations document. This policy should mirror or further enhance -but never contradict – any existing language in the Declarations or ByLaws.
The most common approach to creating fairness when it comes to rule remedies is to allow for an appeal and hearing procedure. Some rule violations, after all, might have extenuating circumstances, or sometimes the violation might have been applied to the incorrect offender. Allowing for an appeal procedure creates an opportunity to hear this out. This “appeal” should come in way of a “hearing” before the Board. Additionally, the Minnesota Common Interest Ownership Act (“MCIOA”) contemplates this notion when it provides that owners should be able to speak before the Board.
A common approach that has been incorporated into more recent governing documents is to allow for a rule offender to be given 10 days to request a hearing before the Board. The Board then has 30 days to schedule said hearing from receipt of a formal request for a hearing (tip: which could and should be at the next scheduled Board meeting). The Board then has a reasonable amount of time to further deliberate the information presented and provide a formal written response to the owner either upholding or altering the rule violation and any corresponding sanctions.
The key, however, to making this procedure work, is to be appropriately notify the homeowners of their right to appeal and hearing in all correspondences that related to the rule violation. Many Declarations (and therefore coinciding rules and enforcement policies) do state something along the lines of “the offender shall be given notice of the nature of the rule violation and the right to a hearing…” If any of the rule violation letters, be it the original warning or certainly any subsequent fines, did not state the owner had a right to an appeal and/or hearing, the Association did not follow through on their requirements for enforcement. Should the matter end up in court, a judge might likely side with the homeowner.
While no one wants to add administrative steps, particularly with regards to owners breaking rules, it is important to be aware of any appeal and/or hearing procedures that may already be in place – and certainly it is important to be incorporating those requirements in enforcement efforts.