The host of Last Week Tonight with John Oliver recently made waves by criticizing common ownership community standards and enforcement actions. What John Oliver failed to mention is that associations not only have a right to regulate and enforce their governing documents, but an obligation to do so, and residents have an obligation to comply.
Do you want to build a 50-foot wall around your property? Paint your mailbox and door hot fuchsia or alloy orange? Let your dog go on a solo-expedition through the community as part of her character-building? Be crowned the best Superhost on Airbnb? Well, your dreams may need to be put on hold if your community outright bans these actions or requires that you get the green light from your community’s board of directors first.
Each common ownership community has governing documents (think: declaration, bylaws, occupancy agreement, and rules and regulations) that dictate what you can and cannot do both within your property and on shared areas. When you buy a unit in a condominium, a lot in a homeowners association, or shares in a cooperative, you subject yourself to your community’s restrictions and standards.
The Governing Documents Draw a Line, But When Should the Line Be Enforced?
Living in a common ownership community often means that you live in close proximity to neighbors or share certain areas. Sometimes, people have valid complaints about others, and other times it is a simple neighbor-to-neighbor dispute or dislike of one another. So, when should the board get involved?
In limited situations, board involvement is necessary. In most situations, though, the decision to take action or not to take action falls within the board’s discretion and business judgment. In other words, as long as the board acts in good faith, its decision will not be second-guessed by a court.
The board is ultimately responsible for enforcing the governing documents and should be familiar and well versed in its provisions and standards. When the board receives a complaint, it needs to determine whether a reported action or behavior rises to the level of violating the association’s governing documents.
In some cases, the violation is obvious. For example, a resident installs wire fencing in a community where wire fences are expressly prohibited in the covenants, or a resident has a pet cat in a building where only dogs are allowed. Other times, a violation may not be clear-cut – perhaps a resident complains of noise or odors coming from another residence.
For each case, the board needs to decide whether the complaint violates a provision of the declaration, bylaws, occupancy agreement, and/or rules. The board should make sure it treats all owners equitably and enforces the documents consistently and without preferential treatment. The board’s decision – whether it is to take action, put the complaint on hold, seek more information, or do nothing – should also be reflected in the meeting minutes and communicated to those involved.
How to Enforce – That is the question
Associations have a right to enforce the governing documents, but residents living in a common ownership community have an obligation to comply with what their documents prescribe. If you do not comply, then your association may take enforcement action against you. The available enforcement options are specific to your governing documents and applicable State law, and may include the following:
- Money Talks. The most popular and sought-after enforcement option is imposing fines. Some statutes like the Maryland Condominium Act or DC Condominium Act grant associations the right to impose fines even if the right is not expressly in the governing documents. But, with power comes great responsibility. Courts have increasingly required that fines be reasonable. For example, a $250 daily fine for a continuing violation like an unapproved exterior alteration may not be reasonable given that it is accruing daily; but a $250 fine for a single non-recurring violation like a loud party may be more sensible.
- Stripped Rights. Many documents allow an association to suspend an owner’s voting right or right to use the shared areas if they are violating the governing documents. This enforcement option is particularly appealing during the summer months when withholding pool passes or access to recreational facilities typically prompts compliance.
- Here We Come. Associations may also have the right to enter an owner’s property and abate a violation at the owner’s expense. This enforcement option is typically relevant where an owner has made an unapproved exterior alteration or addition, but should be used scarcely with caution and as a last resort, and preferably with a court order in hand.
- Tow Away. An association may tow vehicles parked on its property in violation of parking rules. Many local and county laws regulate the procedures and signage required before removing a vehicle from private property, so consult your attorneys and towing company beforehand.
- The Classic Injunction. Associations may also file an injunction to stop violating owners from continuing their actions. Some associations may also be allowed to recoup their attorney fees as well.
The Maryland Condominium Act, Maryland Homeowners Association Act, Maryland Cooperative Housing Corporation Act, DC Condominium Act, Virginia Condominium Act, and Virginia Property Owners’ Association Act, set forth a due process procedure that must be followed before imposing sanctions.
Speak With a Maryland Community Associations Attorney
We recommend you consult with your Community Associations attorney to determine what enforcement options and due process procedures are applicable under your governing documents and State laws.