The key to proper HOA enforcement is following due process and ensuring consistent actions. But this is often easier said than done. To ensure clean enforcement, board members should adopt certain strategies and tips.
What is HOA Enforcement?
Homeowners associations are known for implementing strict rules that serve to protect curb appeal and property values. It is the responsibility of the HOA board to enforce these rules in a fair and consistent manner.
Sometimes, the board will delegate the job to a separate committee, such as a Violations Committee or Rules Committee. Committee members inspect the community for violations, verify governing documents, and follow due process for penalties. Still, the final decision rests with the board.
Many communities seek help from a professional management company. This route sees an HOA manager or management team enforcing HOA rules on the board’s behalf. Again, the board retains final say, but a manager can significantly reduce workload by taking over administrative tasks.
How to Enforce Rules Consistently
HOA rules enforcement is not something that boards should do arbitrarily. In fact, legal issues can arise if the board fails to enforce the rules fairly and consistently. But doing just that is often more difficult than it seems.
Here are the strategies association boards can use to ensure proper HOA enforcement of rules.
1. Investigate Alleged Violations
First, board members should confirm if a violation has indeed taken place. This is a crucial step, particularly if the allegation comes from an owner complaint. Check which provision of the governing documents has been violated.
It is equally important to document everything for evidence. Take photos of the violation, as this can be used during the disciplinary hearing. Relying solely on hearsay can call the board’s integrity into question.
2. Send a Violation Notice
When a violation has taken place, the board should follow it up with a violation notice. This notice should outline what violation occurred and which provision has been breached. It is also important to indicate that a penalty may be imposed if the owner fails to cure the violation.
All violation notices should come in written form. Depending on the governing documents, boards should also deliver the violation notice either in person or by mail. Some communities can send notices electronically if the bylaws permit it and the owner consents.
Violation notices are mandatory as per Illinois law. According to 765 ILCS 160/1-30, an association may only proceed with a monetary penalty if it first notified the homeowner.
3. Give Opportunity to be Heard
Illinois law is clear in that owners must be given the opportunity to be heard before getting fined for a violation (765 ILCS 160/1-30). A disciplinary hearing allows owners to present their side of the story, along with possible evidence for the case. From here, the board can decide if a violation has occurred and if penalties are warranted.
4. Impose Penalties Fairly
Can an HOA fine a homeowner for a violation? It depends on state laws and the governing documents. In Illinois, the law does allow HOAs to impose fines following notice and an opportunity to be heard. According to 765 ILCS 160/1-30, fines for violations must also be reasonable.
The association’s CC&Rs and bylaws may include additional requirements and procedures. It is important to establish a fine schedule for standardized enforcement.
When setting fines, they should be large enough to deter violations but small enough to remain reasonable. Repeat violations can also carry a much higher penalty.
Apart from fines, associations can also temporarily suspend an owner’s privileges until they remedy the violation. For example, an owner may not have a right to vote or access to amenities for a period of time.
5. Leave Personal Feelings Out
Consistent HOA enforcement demands an objective approach. Board members should never let their personal feelings or opinions get in the way of enforcing the rules. Just because they are friends or neighbors with someone who has committed a violation does not mean they should turn a blind eye to the offense.
There is no room for personal vendettas here either. Being too harsh on an owner just because a board member does not like them is an act of overstepping authority. Board members should never retaliate against owners. All of this can negatively impact the board’s credibility.
Fortunately, a manager can help with objective homeowners association enforcement. As a third-party neutral, a manager can approach every violation with an unbiased mind.
6. Enforce Rules Uniformly
Board members should never pick and choose which rules to enforce or apply to homeowners. All rules should be enforced equally. If there are outdated rules, instead of ignoring them altogether, the board should work to amend them according to proper procedures.
Moreover, boards should enforce the rules consistently across all residents. If someone gets fined for a violation, while someone else doesn’t for the same violation, it can render the rule void. Worse yet, residents will lose trust and confidence in the board.
Finally, rules should never affect a certain demographic disproportionately. For example, a rule that prohibits children from swimming in the pool after hours may be deemed discriminatory based on age.
How HOA Selective Enforcement Affects a Community
Selective enforcement of rules is not only detrimental to the image of an association, but it can also render rules void and unenforceable. Residents may challenge the validity of a rule if the board only enforces it some of the time.
Additionally, r diminishes trust in the board. Residents can lose respect and confidence in the board, calling their professionalism and abilities into question. It can also sow feelings of resentment among residents.
All of this can contribute to a poor reputation for the association. This can leave residents unsatisfied and impede the HOA’s appeal to potential buyers. The end result is lowered appeal and property values.
Can I Sue My HOA for Selective Enforcement?
Yes, homeowners generally can take legal action against an association for selective enforcement, but it should not be the first instinct. Lawsuits should come as a last resort after the homeowner has attempted to resolve the issue directly with the board.
Before filing a lawsuit, homeowners should first raise the issue at a board meeting or submit a formal complaint. Sometimes, the board is simply unaware that it is enforcing the rules inconsistently. Taking a more proactive approach can often settle the problem.
Sometimes, owners are left with no other choice but to sue, but lawsuits can be very lengthy and expensive. Homeowners should be prepared for the time commitment and financial burden. There’s also no guarantee that a court will rule in the owner’s favor. To help with the case, owners should gather evidence, document everything, and speak to an experienced attorney.
For Better Enforcement
Consistent HOA enforcement is integral to the long-term success of a community. Failure to enforce the rules fairly can lead to calls for board removal and even legal action. When in doubt, it is best to hire a professional management company to help with enforcing the rules.
Forth Group provides HOA management services to communities in Chicago and the surrounding areas. Call us today at (312) 379-0400 or contact us online to get started!
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