When to enforce, when to change rules
Most Condominium and Homeowners’ Associations have governing documents containing a number of restrictions and rules and regulations. They are designed to keep the communities attractive and the residents happy.
Exteriors of homes and yards are to be kept up, roofs cleaned and condo lanai’s kept from becoming eye sores. Businesses with commercial vehicles and client traffic coming and going are not to be conducted from a home or condominium unit. Neighbors are not to be creating nuisances with loud late night parties.
When an owner doesn’t follow one of these rules made for the benefit of all residents, they need to be dealt with quickly so the place does not deteriorate. If a cordial phone call or e-mail from the property manager or a director does not solve the rule violation, then the matter should be turned over to legal counsel so that the violation ceases and does not happen again.
If legal counsel must get involved, then the violator will be sent a cease and desist letter. If the violation continues after the attorney letter, then legal action may be taken against the violator. Such action could be an Arbitration Complaint with the Division of Condominiums, a pre-suit Mediation Action for a Homeowners’ Association or a County or Circuit Court Complaint depending upon what kind of violation it is. If such becomes necessary the offender could be responsible for the Association’s prevailing party attorney’s fees in addition to their own. So it could become very costly if a violator does not comply once he or she is informed of their violation.
What about rules or regulations that are on the books and violations have been occurring but no enforcement has been implemented by the Association? Well, an Association cannot enforce a violation that it has no actual knowledge about. Therefore, a resident must make a written complaint first to the Association so that the Board becomes aware of the violation that is bothering another resident. Once it knows of the violation, the Board has the fiduciary duty to enforce the rule being broken. If it does not, a resident could go after the Board for not enforcing the rule.
What about a rule on the books that no one cares about? Sometimes there are old rules that have been around for a long time but residents don’t have a problem with other residents breaking the outdated rules. One example is prohibition of pick-up trucks. Many association have no pick-up trucks allowed rules. They were usually written long ago when not many people had pick-up trucks and those who did usually had work trucks which were unsightly with tools and material all in the back and maybe commercial signage.
Well today, most new pick-up trucks are not your granddaddy’s pick-up trucks. Many cost twice the price of a regular car and can be quite good looking and upscale.
If your residents don’t mind having these nice looking pick-up trucks in the driveways or in the parking areas, then a Board should probably put up a vote to the members to remove the pick-up prohibition from their governing documents. This should go for any rule that the vast majority of the members no longer want to be enforced.
If you don’t get rid of such rules, then all you need is one resident who does not like their neighbor and will go after the Board if the Board does not make their neighbor get rid of their truck. If the Board refuses (without getting the rule amended out by the members), then the Board could be sued by the owner for not enforcing the rule on the books. This could become expensive for the Association and politically a problem for the Board.
Summer may be a good time to have a committee review all the rules and regulations of your Association and determine what rules are no longer wanted and what ones should be changed or added to keep up with the times. Your legal counsel can then help you prepare the legal documents to have the members vote to make the changes.
