THE SELF-MANAGED HOA
H
omeowner associations, by their very nature, create an environment ripe for adversity and conflict. Membership is not voluntary. The obligation of the homeowner to pay assessments and conform to the provisions of the governing documents is not based on agreement with the board’s decisions, use of amenities, or satisfaction with how assessments are budgeted and spent. For homeowner rights advocates, this is a nightmare scenario. Homeowner association boards of directors have a duty to enforce the association’s governing documents. Furthermore, the enforcement of the governing documents must be “in good faith, not arbitrary or capricious, and by procedures which are fair and uniformly applied” (Liebler v. Point Loma Tennis Club, 1995). Boards of directors can minimize the conflict and anxiety of enforcement by using a commonsense approach that includes the following. REVIEW KEY SECTIONS OF THE COVENANTS, CONDITIONS AND RESTRICTIONS, OR CC&RS. For the
most part, enforcement activity is focused on the following articles or sections of the association’s CC&Rs: (1) Use restrictions, (2) maintenance and repair obligations, (3) architectural review, and (4) rental restrictions. A review of these provisions will quickly inform the board of potential enforcement situations for which they need to plan or adopt clarifying rules. If the
BY JOHN CLIGNY, AMS, CAMEx, CCAM-HR
A Commonsense Approach to Governing Document Enforcement
association’s CC&Rs are more than 15 years old, an attorney should review these sections to determine if the restrictions are still applicable and legal. REVIEW PREVIOUSLY ADOPTED RULES AND REGULATIONS. A
review of current enforceable policies, rules, and regulations should be done annually. Doing this effectively may require the assistance of the HOA’s attorney. Boards are responsible to ensure that association rules are relevant, current, and consistent with federal, state, and local laws. Consider scheduling this review on the board’s governance calendar. Boards often adopt rules to address pressing concerns that are not clarified in the CC&Rs. They should review these rules periodically to make sure they are clear and make sense for the community.
REVIEW AND ADOPT A SCHEDULE OF FINES AND A PENALTY ASSESSMENT POLICY.
California Civil Code §5310(a) (8) requires boards to adopt and distribute to members annually a policy statement describing the association’s discipline policy and the schedule of fines that can be imposed for violations of the governing documents. This is not an option. This policy needs to be reviewed annually and revised as necessary. The policy may include information about how members can file complaints of violations, how the board will investigate the alleged violations, and what steps the board will take to notify members of infractions, provide remedy periods, and begin and escalate enforcement action. To be effective, the schedule of fines needs to be meaningful and reflect both the nature and potential consequences of the infraction. Continued on page 20 ECHO journal | ISSUE THREE 2021
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