What are the challenges facing a board of any association which has recently experienced significant board member turnover or has emerged developer control with a newly elected board of homeowners? Generally, such prior boards are not known to be attentive in the area of enforcement of covenants. There are many challenges but one which requires prompt attention is architectural violations which have not been addressed by the prior board. Some homeowners have likely added fences, sheds, and other exterior improvements without getting approval from the Association. Many of these addition and exterior improvements may not meet the standards that were part of their documents. The board has a duty to enforce covenants and rules. So, what can the new board do about these apparent violations?
The first step is to study the architectural covenants to determine what powers the Association has to enforce the rules. The first place to look for the powers of the Association is in the declaration of covenants. Usually an Association’s declaration establishes a committee for this purpose and grants it powers and duties.
In addition to declaration provisions there are often Architectural Guidelines in the nature of rules and regulations which detail the standards for the community and the procedures for enforcement. If these do not exist, the Board of Directors should pass a policy resolution that clarifies the standards in the Association’s governing documents with greater detail and sets the procedures for enforcement.
One of the most important reasons that the Guidelines need to be in place is that the actions of the Committee are subject to review in any legal action in which the Association may become involved. The more clearly the resolution defines the procedures and the more closely the committee adheres to them, the more likely they are to be successful if a violation goes to court.
The Virginia Condominium Act and Property Owners Association Act provide that in order for the Association to legally enforce any violation of the rules it must have given the violator an opportunity to be heard and be represented by counsel at a meeting of the committee or Board of Directors. There are strict rules regarding written notice of the hearing. Before taking these steps, the Association should send each owner a “non-hostile” notice of a rule’s violation. It is possible that an owner does not know that he or she is in violation or doesn’t understand the rule. Offer to meet with the owner to explain the reason for the rule. In other words, do some marketing.
Subsequently, if the violation is not corrected, the owner needs to be given notice of a hearing by the Committee or the Board if there is no committee. This notice needs to state the time and place and the rights of the violator in that hearing. If the Board finds there is a violation, it should give the owner reasonable time to correct the problem. This may be as little as five days to remove a junk automobile or up to 90 days to remove an unauthorized structure.
If the owner does not clear the violation and if your governing documents contain provisions required by statute, Virginia law provides that you may levy administrative charges ranging from $10 per day to $50 per offense. Those are treated as additional assessments.
With consistent enforcement most violations will be remedied by the first or second notice. The majority of the remaining violations can be resolved at a hearing. Occasionally a violation will not be resolved and either the Association or the violating owner will want to take the matter to court. Board members must realize they have a fiduciary duty to the community to enforce the covenants consistently and promptly notify owners who violate them. If the Board repeatedly fails to act on a certain type of violation and many owners “follow the leader,” it may lose the right to enforce the rule. If offenders refuse to comply within a reasonable time, the Board needs to take legal action.
Let us know if you need more guidance on the enforcement of your covenants and rules. We deal with these issues frequently.