Kelly:

Residents in our HOA are encouraged to report rule violations. I and others have reported violations directly to the manager, primarily because the phone numbers and email addresses for any of the board members are not public for the residents.  How do we follow up on reports of violations and/or obtain statuses? Some of these reported violations have not been taken care of in over a year.  When I asked our manager and our president, they each said they could not divulge this information.  What can we do?

E.R., Chula Vista

Dear Kelly:

I live in a small HOA and each homeowner is responsible for home exterior maintenance.  The current board will not enforce any of the community rules because they do not want to offend any of the residents with violation letters. What are my options since our neighborhood is beginning to look shabby? Thank you, J.M., Newport Beach

Dear Mr. Richardson:

Our board members do not adhere, follow, or enforce any of the HOA policies.  What can we do about them not fulfilling their obligation?

J.D., Yorba Linda

Dear E.R., J.M., and J.D.:

Enforcement of association operating rules is a basic function of the board. Per Civil Code Section 5975(b), only the association can enforce rules. Homeowners can enforce CC&Rs against their neighbors, but not rules. It can be frustrating when it appears the association is not acting against violators.

Associations should keep their disciplinary actions confidential. So, once a complaint is received of a CC&R or rule violation, the complaining party needs to trust that the HOA is handling it appropriately. Typically, if there is a disciplinary hearing, the complaining owner would not be notified of the hearing or its outcome. So, the fact that the board or manager does not provide updates does not mean the rule is being ignored.

Boards have reasonable discretion as to which violations they enforce and which they don’t. Appellate cases including Behan v. Lido (1977) and Eith v. Ketelhut (2018) illustrate that the HOA can reasonably decide how to interpret its documents and determine whether rule enforcement in a particular situation is in the HOA’s best interests. However, that discretion must be exercised reasonably and not arbitrarily. A board cannot take a position contrary to the clear language of the document (such as in the 2008 ruling in Ekstrom v. Marquesa case) or contrary to law (as in another 2008 case, Ritter v. Churchill).

Some rules are very difficult to enforce, due to practicalities and available management or volunteer resources. Before adopting a rule, a board should consider it is practically enforceable, and is the issue sufficiently widespread that the HOA needs to have a written rule? Some associations have so many rules that it is hard for residents to know and comply with all of them, and others adopt rules to deal with a single situation. Both approaches do not help positive community living.

At the end of the day, rules should protect the property and ensure a reasonable level of neighborly behavior. If a board and manager are unable or unwilling to enforce reasonable rules, the majority of the homeowners will be affected, and may decide that a changed board would approach the matter better.

Best, Kelly

 

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to Kelly@rodllp.com. Past columns at www.HOAHomefront.com. All rights reserved®.

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