As an HOA board member, it is your duty to understand the rules, restrictions, and regulations of the association. Some rules have been in place since the association was created and others may be new additions or amendments to older rules. In any case, it is the responsibility of the HOA board to enforce any violations.
When handling a violation, there are many things to consider and therefore many ways to go about determining consequences. It is essential that a board member understand the violation process and what kind of power they hold in a violation scenario.
Check Relevant Documents
Your association CC&Rs, otherwise known as the Declaration of Covenants, Conditions, and Restrictions is typically the document a board member should refer to when a violation is made. The CC&Rs commonly outline the initial set of rules and restrictions created simultaneously with the association itself, as well as the power that the HOA board has to enforce them. Any rules, regulations, and restrictions that are implemented after the creation of the CC&Rs can usually be found in a separate document farther down the document hierarchy. Additionally, the HOA bylaws will often contain a set of procedures for handling violations as a board member. Not all violations are equal and so it is imperative that board members refer to the correct document when deciding how to handle them.
Typical Violations Procedure
Depending on the violation, there will be a certain set of actions that the HOA board must take. Some violations, such as those that break a “law of the land,” will be different than those that break a rule set forth by the association. Laws of the land refers to legislation imposed at the federal, state, and local levels. Laws take precedence over all documents and institutions within the association. In other words, if a homeowner breaks a federal, state, or local law, then he or she will have to face that judicial system rather than that of the association. When it comes to these types of violations, board members should contact the proper authorities.
In terms of violations of the rules and restrictions set forth by the association, the HOA board should adhere to the protocol outlined in their governing documents. A typical violation enforcement goes something like this.
Send a Violation Letter
The homeowner in violation must be made aware that they have broken an association rule. The violation letter should thoroughly explain what the violation was and cite the specific rule in the governing documents.. The board does not have the power to enforce rules that do not exist, so referring to the governing documents is essential. The violation letter must also state when the hearing will take place.
Despite having to handle the majority of violation enforcement themselves, an HOA board can choose to have certain matters handled by a remote management company such as Clark Simson Miller. CSM will send out violation letters, as well as newsletters and meeting notices – alleviating some of the communication responsibilities of the board.
Hold a Hearing
The violation hearing should take place soon after the letter was received but not so quickly as to deprive the offender of adequate preparation. Typically, hearings are held around 10 days after the violation letter was sent. The purpose of the hearing is for the board to explain the nature of the violation to the homeowner and so that he or she can then provide the board with their reason(s) for the violation. For instance, if a homeowner had installed a basketball hoop in their driveway they may receive a violation letter from their association if basketball hoops are not allowed. The hearing committee will begin by presenting their case; explaining the violation and providing evidence that the violation occurred. The homeowner can then defend their actions, stating that they didn’t know about the rule, it’s only temporary, etc. Once both sides have presented their case, the committee will either deliberate and provide a decision at a later date or, if they are able to come to a quick conclusion, issue their decision at the meeting.
Should the governing documents allow it, the decision of the hearing can be appealed by the offender if they are not satisfied with the outcome.
Common Violation Penalties
There are many types of consequences for making a violation and ranging in severity. Once again, board members should refer to their governing documents when determining consequences. If the violation wasn’t severe and it is a first offense, many associations will be lenient with the offender and only issue them a warning. However, violations commonly result in a monetary fine to be paid by a certain date. Some fines may accrue daily until the violation is corrected, while others may be a one-time payment, so long as the homeowner makes the necessary adjustments. In cases where a fine continues to go unpaid, the association can take the offender to civil court to obtain their payment or place liens on the owner’s property.
Request a Proposal From CSM
The HOA board has many responsibilities such as budgeting for association costs, collecting fees, enforcing violations, holding meetings, and much more. Without full-time board members, the overall amount of tasks can be a heavy burden. Outsourcing certain back-office responsibilities to a remote-management company like CSM can ultimately benefit the association by alleviating some of the workload for volunteer board members.