Enforcing HOA Covenants, Conditions & Restrictions (CC&Rs), is arguably a community manager’s most challenging function. For one thing, the legalese found in covenants can easily be misunderstood. Other times, it’s the perceptions or personalities of those involved that makes covenant enforcement difficult.
Some boards and managers rely exclusively on the ‘letter-of-the-law.’ For others, enforcement is considered the ‘spirit-of-the-law.’ Neither approach to enforcing covenants is correct 100% of the time.
Here are 3 key elements of covenant enforcement to consider.
1. The Foundation of Enforcement
Rely on the covenants like a constitution. They are foundational to all enforcement in the HOA, providing letter-of-the-law proof of what the owner agreed to, when buying a home in the community. Only federal and state laws can override them.
Amending documents may solve some enforcement challenges. Unfortunately, that’s not always easily done. For many HOAs, just getting enough members to participate (a quorum) is challenging enough - let alone the majority ‘yes’ vote required in bylaws or CC&Rs.
Are the Covenants Misunderstood?
Difficulty enforcing covenants may come from a lack of understanding by owners, the board, or even you – the manager. The HOA’s legal counsel can help.
They can assist you in writing (or editing) General Rules & Regulations – a simplified version of the covenants, typically only a few pages long. They are based on CC&Rs, but usually easier to change.
Rules can be categorized 3 ways:
- Behavioral – indicating expectations of how residents and guests respect each other, treat staff, and interact with board members.
- Common area appearance – maintaining the property values of the community.
- Repair & maintenance – legal counsel can extract a matrix from CC&Rs, clarifying HOA versus owner responsibilities.
The goal is not to fine the owner -
The goal is to resolve the violation!
2. Enforcement Communication
Well written violation notices are clear and factual. Details in the notice are critical. Include pictures (if applicable), and list specific rules violated.
Edit the letters with the reader in mind. How would you feel, or what would you think, if you were the recipient of this letter? The threat of HOA action against the owner should be balanced with reason.
In all communication, avoid opinions that will only foster conflict. Set a tone of cooperation in written, and verbal communication that shows the HOA is on the owner’s side - not against him or her.
Spirit-of-the-law questions to ask:
Is the owner making effort to resolve the violation?
Should an extension to the deadline be granted?
Heavy-handed threats may get the result in the end, but can create bitter owners. Always remember, the goal is not to fine the owner - the goal is to resolve the violation! The threat of legal action is the last resort.
3) Managing Enforcement Conflicts
Let’s face it - some owners are rule-followers and some just aren’t. Some appreciate the importance of covenants, understanding how they help maintain property values. Others find them unreasonable and resist compliance.
It’s no fun to deal with difficult people - few would argue that fact. Any experienced manager will tell you that every HOA has at least one of these ‘bad apples’ – even in the smallest of communities. And sometimes that difficult owner is also a board member, legally bound to follow the same covenants.
As a manager, there is little you can do to change a person’s behavior. But there are ways you can manage it when it comes to covenant and rule enforcement. Ask yourself - how well do I handle difficult people? In our article called Managing Multiple HOAs: Top Tips for Portfolio Management Success, we help identify areas you can improve this essential function of community management.
An owner, frustrated by the rules or how they are enforced, may have had bad experiences from previous HOA board members, or managers, who handled enforcement poorly. They may assume you’ll handle it the same way. Make it your mission to prove their perception wrong. Sometimes they believe they are being singled out for a violation, when covenants aren’t being enforced fairly. And that could be true. Some board members abuse their position with the attitude - “the HOA rules are for everyone else.” Board members with strong personalities can make your job even more difficult. There’s a delicate balance between individual owners, you, and board members. The management company’s client, or your job, may be at stake.
Ask yourself - is our enforcement reasonable? In a court of law, the judge would ask that question. Here are some case law examples. Above all, consistency is most important. Legal statistics show that inconsistent enforcement is among the top reasons HOAs get sued.
Most importantly, all covenants should be applied to all owners - all of the time.
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