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Most people do not volunteer to serve on their homeowner association’s board because they relish the thought of being the community’s hall monitor, enforcing what can often be a long set of HOA rules on their fellow homeowners and tenants that they may see every day. Thus, when a resident disregards the HOA rules, and it comes to a board member’s attention either through an official meeting or an informally-made complaint, the temptation can be to: 1) hope the resident stops violating the rules on his own; 2) hope that the person complaining about the violation gives up or stops caring; or 3) give a weakly-stated, friendly reminder to the resident of the rules, and hope that approach works. While any of those are possible, “hope” is the key word in all three of those options, and, in all too many cases, the resident simply keeps on disregarding the rules. How you as a member of the HOA board responds to this repeated disregard can have profound consequences for the HOA and life in the community.

If You Fail to Enforce Rules, You Can Set Yourself Up For Bigger Problems

Simply letting a tenant’s failure to follow HOA rules “slide” so to speak – especially when the rule violation and accompany complaint may seem to you to be petty and unimportant (e.g. specific requirements relating to a person’s tending of their garden or yard or the color of a mailbox) – can bring bigger problems down the line.

You may recall former NYC Mayor Rudy Giuliani’s famous “broken windows” policy that he enforced in the early 1990s with police chief William Bratton. The broken windows theory says that if you allow a neighborhood vandal to break the windows of an abandoned house without penalty, then the vandals will come back the next day to burn the whole house down. Applying that to crime, the NYPD began to enforce laws against minor crimes like public urination and subway fare-hopping, and the result was that a culture of law and order prevailed with the understanding that all laws will be enforced, and crime came down as a result.

The same is often true at HOAs. If an HOA board does not actually enforce some rules it deems to be minor, a communal attitude of apathy towards the rules may arise. People may feel it is okay to break all of the HOA rules, not just the minor ones, with some residents even breaking HOA rules to spite the HOA board and their neighbors in response to their violations.

Furthermore, if an HOA board only selectively enforces some rules against some residents but not other rules against other residents, affected residents may end up taking legal action against the HOA board under the principle that its leadership has been compromised.

Enforcement Against the Tenant vs. Owner

An HOA’s enforcement authority is based on state law and the Declaration of Covenants, Conditions and Restrictions (CC&Rs).  CC&Rs are a contract with provisions that cannot be abandoned or waived.  The contract, however, is only between the HOA and the owner of the property, not the tenant.  This begs the question of whether the HOA can pursue a tenant directly.  There are a few times when the HOA can enforce violations directly against a tenant (i.e. a tenant is dumping toxic waste into the HOA’s lake) but in most situations the HOA has to go through the owner to compel the tenant’s compliance.  If an owner does not address the problem with the tenant, the HOA certainly has the ability to fine the owner or take more drastic steps, one of which can be obtaining a court order that the owner evict the tenant or cure the tentant’s violation(s) his or herself.  

How Engaging an HOA Attorney Can Address Problems Quickly and Minimize Stress

All of that said, there is still the problem of the tension that can occur when the HOA board members attempt to enforce the HOA rules. Although overall tension should deflate when there is an understanding that rules are uniformly enforced and homeowners are not arbitrarily or randomly targeted by the board, tension can arise in specific situations whenever the board takes action. But, by working with an outside HOA attorney, a board can take quick, decisive action to address problems in a less confrontational manner.

When an HOA attorney can clearly and calmly explain to a resident how he or she is violating the rules and what consequences can apply, the message may be able to be heard by the resident more clearly than if it was delivered by a neighbor. Furthermore, the HOA attorney can take all further necessary steps to secure compliance if the tenant continues to disregard the rules.

Work With an HOA Lawyer in Handling all HOA Legal Matters

At Goodman Holmgren, our sole focus is on meeting the legal needs of HOAs, including creating and implementing HOA policy and responding to homeowner concerns. Contact us today to discuss any legal challenge your HOA is facing.