Tuesday, December 8, 2009

Can the board take matters into its own hands?

I am often asked by frustrated board members whether or not they can legally hire someone to clean that dirty roof, cut the overgrown lawn or tow away the illegally parked vehicle after they have tried unsuccessfully to convince a unit owner to comply with the association's governing documents.

The answer depends on whether or not such authority is granted to the board under the documents. Many, but certainly not all documents, do grant some form of "self help" that boards can utilize to solve a violation when all else has failed. Of course, there are several factors to consider when deciding whether or not to take this route.

1. Do the documents allow the board to perform maintenance or repairs that are the responsibility of the unit owner when he or she refuses to do so and specially assess the owner for those costs? If the documents allow the board to perform the work but not to charge the owner directly for those costs, that is usually the dealbreaker for most associations contemplating self help.

2. Does the association know a reliable contractor willing to undertake the work knowing that the homeowner is not in agreement with the board? Many contractors are understandably reluctant to step foot on private property under these circumstances.

3. Will the owner or other resident become violent once an attempt is made to undertake the work? Many associations choose to commence the necessary repairs or maintenance while the owner or resident is vacant from the property to avoid an escalation or possibly violent encounter.

4. If towing is contemplated, is the proper authority for same provided in the documents and is the proper signage installed on the property?

5. Has the proper notice been given to the owner demanding that the violation be cured and failing compliance, notice given that the board will be exercising its right to perform the maintenance, repairs or other corrective action itself and bill the owner accordingly?

The upside to self help is obviously the ability to fix the immediate problem without having to wait forever for an owner to do so. Being able to specially assess the violating owner for the work without having to incur attorney's fees to otherwise pursue the matter is also a benefit. The downside includes potential liability should the contractor hired by the association injure person or property and the possibility that the situation could quickly become hostile during the performance of the project.

As with every other enforcement method, self help must be applied routinely and uniformly. If your association documents do not provide for this method of enforcement, you should discuss the pros and cons of such a provision with your association attorney.

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