Tuesday, February 9, 2010

How to put some teeth into your association’s governing documents!

Whenever a board wishes to do something, we tell them to “check your documents”. Many times, however, they are shocked to learn that they can’t quite do everything they had intended, especially when it comes to enforcing use violations.

What can a community do to ensure that the board has all the proper tools needed to enforce violations? Below is a list of enforcement provisions that should be found in your governing documents and, if they are not, should be amended thereto. Please keep in mind that enforcement provisions such as these should properly be found in the association’s Declaration of Condominium or Declaration of Covenants and Restrictions rather than the Bylaws, Articles or Rules and Regulations. Sticking these provisions in the document carrying the greatest weight will increase their odds of successfully withstanding a challenge.

Enforcement Provisions:

Self Help/Special Assessments: This will allow the board to take certain maintenance or remedial steps that an owner fails to take and to specially assess him or her for the costs of same.

• Prelitigation Attorney’s Fees: This will allow the board to require the violating owner to pay for attorney’s fees and costs associated with securing his or her compliance with the documents rather than having to wait until litigation or arbitration is commenced.

• Towing: This will allow the board to safely tow unauthorized vehicles from the association premises.

• Collection of Rents/Use of a Uniform Lease or Lease Addendum: This will allow the board to collect rent from tenants in delinquent units. A board-approved uniform lease or lease addendum should also allow the board to evict troublesome tenants without having to rely on the owner to do so.

• Fining: This allows the board to fine up to the statutorily permitted amounts so long as proper notice procedures and an opportunity for a hearing are followed. Fines cannot become liens against a unit or lot so collecting them requires Small Claims Court. Notwithstanding that hurdle, they can prove to be a deterrent in some circumstances.

• Suspension of Use and Voting Rights: This can only currently be used by HOA boards but several bills this Legislative Session would empower condominium boards to similarly suspend use and voting rights for delinquent owners if the governing documents so provide.

• Security Deposit for Common Area Damage: This allows the board to use funds deposited for common area damage to be used to pay for any damage inflicted by an owner, his tenants, guests or other invitees.

It is important to remember that the board’s ability to meet members’ expectations with regard to the community’s appearance and function is limited by the tools provided to them under the governing documents.

1 comment:

  1. In this new day and age and with the prices of condos down to a point where more pople who could not buy a condo before is able to do so now means that we need to review our documents to not only refresh oursleves but also there might be things in your docs that you would want to tighten up on for better control