As a volunteer community leader, you probably never pictured yourself acting as the "town sheriff". But community associations have governing documents which must be enforced, and someone must enforce them, right? When it comes to compliance issues, acting reasonably and uniformly enforcing the provisions of governing documents will make your time as a board member a much less stressful experience. And, remember, as a board member one of your goals is to contribute to the overall success of your community. So, by acting reasonably when it comes to violations, the association will be less vulnerable to litigation and, if litigation does occur, boards will have solid footing in that they’ve acted appropriately in all situations.
NC & SC Laws
In North Carolina, the Planned Community Act (NCGS 47F) and Condominium Act (NCGS 47C) give the association the authority to adopt and amend governing documents and rules and regulations, and, in some associations, this authority may be broadened in the governing documents. Also, in North Carolina, state statutes require that a member be provided an opportunity for a hearing prior to a fine being imposed. In South Carolina, any such power will be found in the association’s master deed and – this is an important one – any changes made must be recorded with the county’s register of deeds to be enforceable.
What do the Courts Say?
In both North and South Carolina, judges will typically lean in favor of property owners if an issue surrounding governing documents reaches the courts. Why? Overall, restrictions that govern community associations are generally disfavored and courts will often tend to favor unrestricted use of one’s property. But that isn’t to say courts always rule in favor of the property owner. To sway the court in the association’s favor, it is important to show a history of reasonableness when it comes to violations, illustrate that there has been uniformity in enforcement, show that your governing documents use very specific language and, of course, avoid the appearance of pettiness towards property owners. It is very important boards to not only follow the governing documents and laws, but to also be sure the compliance process is procedurally adhered to.
In South Carolina, the association’s governing documents will lay out the specific processes that must be followed in instances of violations and will include information on notices, fines, privilege suspensions, and members’ rights. In North Carolina, the Planned Community and Condominium Acts lay out specific procedures that must be followed if the association’s governing documents do not include language on how violations must be handled. This information can be found in Section 3-107,1 of both NCGS 47F and 47C.
What is the Purpose of Issuing Violations?
There should only be one purpose in issuing violations to community members and that is to gain compliance. What are some examples of unacceptable purposes? The purpose of issuing violations should never be punishment, to collect money for the association, to set an example, to embarrass someone, or to exact revenge. As a board member, you’re always called to act ethically and reasonably and use good faith judgement. Issuing a violation for any reason other than to gain compliance goes strongly against those standards. It is a good practice to provide community residents with notice as to when the community will be inspected for violations. Again, the intent is to gain compliance, not to find violations.
So, what role does the board play when it comes to compliance? In a sense, the board unfortunately must act as the “policeman” at times. How are you the policeman? Board members are tasked with enforcing the association’s restrictive covenants. You may also find yourself the “expert” at times in that you must have a thorough knowledge of the provisions of your governing documents and have your attorney readily available to assist in document interpretation when needed.
How to Handle Violation Issues the Right Way
We’ve told you a good deal about what not to do, so you may be asking “are there any good ways to handle violations?”. Even though the subject is touchy at best, there are processes and policies boards can adopt to ensure they are always acting reasonably and uniformly in the enforcement of governing documents.
The term “reasonable” is, again, subjective – what is reasonable to one person may be unreasonable to another. So, to create a standard of reasonableness, it is a good idea that boards adopt a violations policy and stick to it. These policies can address things like accepting written vs. oral complaints (hint: they should be written), how and when the community is inspected for compliance issues, how many courtesy notices or warning letters a property owner receives before the issue is escalated, setting a fine schedule, setting parameters for privilege suspensions, things like that.
Once your board has adopted a policy, stick to it! You should always be willing to listen to the property owner’s side of the story and hold meetings/hearings before making final decisions. Listen to the owner’s story – while again, uniformity in enforcement is key here, boards should understand that “life happens” and allow the owner to explain their side. Perhaps most important, boards must always document why they did or did not choose to enforce a policy. This can be an invaluable tool in illustrating uniform enforcement in the event an issue lands in front of the courts.
What if your board doesn’t have any specific violations processes in place? If your covenants lay out a specific process, it must be followed. In either instance, being able to illustrate that due process was followed will only work in your favor. Communication is also very important here – be sure to thoroughly explain the fines and suspension processes to owners.
Overall, uniform enforcement will aid in the avoidance of claims that the board is acting arbitrarily or seeking to be punitive.
Relying on Precedents
While precedents can be a helpful tool in enforcing governing documents and are something courts use often, don’t get too hung up on the idea. Though precedents and the idea of uniformity are closely related – “this is what we’ve done in the past under the same circumstances, so we have to do it here” – you don’t necessarily have to stick to them in every situation. If your board is going to deviate from precedent, the key is to illustrate what makes one situation different from another and thoroughly explain to an owner why there is a difference. Be sure that you’re able to explain those differences because if you can’t and the case ends up in front of a judge, there’s a good chance they’ll rule in favor of the property owner.
As you can see, compliance issues aren’t always black and white. While having policies and procedures in place is of the utmost importance, it is equally important to be reasonable and illustrate a willingness to listen to owners and communicate with them regarding the association’s policies. After all, you’d much rather be thought of as your community’s Sheriff Andy Taylor versus Barney Fife (remember the episode where Barney arrested the entire town including Aunt Bee!?). Though Barney was well meaning, his style of law enforcement tended to cause trouble instead of helping the town – something all board members would undoubtedly rather avoid.
Is your community receiving the trusted guidance it deserves? If not, reach out to the experts at CAMS today via our website or at 888.798.2624.