– By James R. McCormick, Jr., Esq. (originally published in July 1998)
So you live in a common interest development. You’ve got your association’s bylaws, CC&Rs and rules and regulations to contend with. You’re up to your ears in do’s and dont’s, written mostly in legalese. So what do you do about it? Let me guess: you sit down with the governing documents, diligently reading each provision and making notes as to those provisions you don’t understand. Then, with notes in hand, you contact the property manager, your attorney, or the association’s attorney, inquiring as to each provision which doesn’t seem to make any sense. Not a very likely scenario.
You may be surprised, however. Many homeowners within common interest developments really do read through the association’s governing documents and know what it is they are supposed or not supposed to do. Others merely go along with the flow, taking hints from their neighbors’ actions. So how about this scenario:
As you walk your lovely dog Rover through your association (cleaning up after him, of course), you notice that three or four other owners within the association are maintaining a dog house on their patios. While a couple of them are very nice, the others seem a little old and in need of maintenance. You think to yourself, “what a great idea!” So, taking the lead of these other owners, you decide to purchase a small mansion for Rover. While the dog house was expensive, Rover loves his new home and you are finally able to get some sleep at night without Rover trying to snuggle into your bed. Two months later, however, you get a notice from the association instructing you that you are in violation of the governing documents and that you must remove the dog house immediately. But wait, you think, what about the other dog house owners; especially the ones that are in desperate need of overhaul — this isn’t fair!
Sound like selective enforcement? Like the association is picking a fight with only you out of all of the other owners with dog houses? Well, chances are, the association’s intentions are not as sinister as they may seem. It is possible that the other owners have received letters as well. It is also possible that no one has ever noticed the other dog houses or complained about them.
Generally, an association within a common interest development is legally obligated to perform three basic functions: to collect assessments; to maintain the common area; and to enforce the governing documents. The letter you may have received from the association indicating you are in violation, is the association’s attempt to enforce the governing documents. While you may see the letter as singling you out, it may really be the association’s attempt to avoid becoming a police state. Board members and property managers cannot be on every corner watching for violations. Associations, therefore, commonly rely on complaints by neighbors, or routine walkthroughs to determine what violations exist in the community.
But is it fair? Living next to someone who has read the association’s governing documents cover-to-cover and knows when something is out of order can be disturbing to the violating neighbor. Living next to owners who have not read the documents may allow violations on neighboring properties to go unnoticed, unless they decide to paint their home bright orange (in violation of the governing documents), and then it will be you complaining to the board or property manager about your neighbor’s violation.
So when does enforcement really become “selective?” It primarily depends on notice of other similar violations. If a complaint is received relating to a violation of the association’s governing documents, the association is obligated to investigate and take appropriate action. If the association has received notices of numerous, similar violations, yet has only sent letters to one or two of the owners in violation, selective enforcement results.
So what should a board of directors do? Short of becoming an Orwellian “Big Brother,” once notice is received, the association is obligated to treat all like violations in a similar manner. This prevents misunderstandings and confusion, and keeps the association out of a prolonged, emotional and legal battle with an owner. Further, doing so will allow the board to perform its job as efficiently as possible. This is not to say that an association should rely solely on notice from maintenance issues, and violations not readily noticeable to a neighboring owner.
Back to our example. Based on the violation notice, you contact the association only to learn that the association did not know about the other dog houses. Now that the association has received “notice” of the other violations, violation letters should be sent to those owners as well.
The main thing to remember is that an association, its board of directors, and the property manager are not a police force. The association mainly serves the limited functions listed above. Associations typically rely on the honor system, with periodic walkthroughs. With a little help and understanding from the owners, the community can work together and prevent the association from becoming a police state similar to that described in George Orwell’s “1984”.