Rules should be uniformly enforced
I received a violation letter and a $50 fine from my association for parking my jet ski trailer in my driveway.
The violation letter states that the trailer is not an “approved vehicle” and could not be “stored” in my driveway.
This violation and fine is the first I am hearing of this rule. I also have reviewed our association rules and it seems that our board is only enforcing the rules they want to enforce.
For instance, basketball hoops have sat outside of some homes for years without enforcement even though our rules state that basketball hoops are to be stored “out of sight when not in use.” Can a board determine which rules it wants to enforce?
Thank you, Marc. This is a great question. In my professional opinion, association boards must diligently and uniformly enforce the association’s governing documents, which include the CC&Rs, bylaws, rules and regulations and any properly adopted policies. The only exception would be if a new federal or state law conflicted with a provision in the association’s governing documents, in which case, the new law would govern.
For instance, many older association’s CC&Rs may forbid satellite dishes, but pursuant to updated Federal Communication Commission laws, such as the Telecommunications Act of 1996 and the Over-the-Air Reception Devices Rule, associations are no longer permitted to strictly forbid satellite dishes.
In this case, the board must enforce the updated law irrespective of what the governing documents state. Absent this type of legal conflict, I believe associations have an obligation and responsibility to uniformly enforce any and all rules set forth in the governing documents.
That said, I encourage homeowners to not automatically assume that because an outstanding violation is not resolved in a timely manner that the association is not taking action. Unfortunately, it sometimes takes significant fines and penalties before noncompliant residents take corrective action.
I am concerned by your statement that you only learned of this rule upon receipt of a violation letter and a $50 fine. I encourage you, as a member of the association, to review your community’s governing documents so that you are familiar with all rules, regulations and policies.
I would also encourage you to specifically review your community’s violation policy. Associations are not permitted to levy fines against residents without first calling them to a hearing before the board of directors. If you were not invited to appear at a hearing before the board, I would suggest you to challenge the fines.
Please note: It is important to make certain that you bring your property into compliance prior to meeting with the board or requesting that any fines be waived or retracted.
On occasion, there are board members who passionately disagree with an existing rule or policy, and therefore have a hard time voting in favor of member discipline, such as violations and fines. In such instances, I always remind boards that they have the ability to update and revise the association’s rules.
Updating rules and regulations, and association policies is relatively straight forward. The board of directors must draft a new set of rules and regulations and/or a new policy and send it out to the membership for a 30-day review prior to approval and adoption.
Updating CC&Rs is much more difficult and more costly, requiring a special election and at least a majority of affirmative votes of the membership. Your association bylaws will specify the number or percentage of affirmative votes necessary to update the association’s bylaws and/or CC&Rs.
In summary, until such time as the association updates or revises its rules, regulations or policies I believe boards to have an obligation to uniformly enforce the existing rules throughout the community.
At the same time, I strongly believe that association residents have an obligation to strictly adhere to the association’s rules, regulations and policies and encourage all owners to ensure they are well-versed with regards to the community’s governing documents.