Q&A: HOA boards should think twice before taking a hard line on rules

Question: I own a single-family home in a common-interest development. One of the reasons we purchased this house was because we knew it had covenants, conditions and restrictions, and felt that we won’t have to worry about policing our neighbors. That’s what the board is supposed to do. But after only a year, I’m very frustrated.

There are a few condominiums here, so parts of our complex have a higher density. The people who live there keep coming over to the single-family home neighborhoods. They use our sidewalks and pools and other amenities. We see other violations of the CC&Rs every day. My wife and I have attended board meetings to voice our complaints to the board. The issues we report are, in our opinion, discounted.

The violators we complain about are told “just don’t do it again,� but we want them fined or penalized. When we complain about over-watering or the association taking too long to correct common-area problems, we’re told “the board is looking into it.� They aren’t correcting these problems fast enough, yet our monthly fees rise every year. Should we move?

Answer: The fact that your fees rise every year is likely due to inflation and other factors outside your board’s control. It’s also not a reason for the board to step up enforcement and take a hard-line approach to every rule and regulation, which can create dissension within a homeowners association. A reasoned approach can garner trust and accomplish more over time.

The board isn’t a police force and shouldn’t issue a warning, citation or fine for every alleged violation reported by owners. It would be a waste of association resources to haul in every owner for hearings for infractions. It is important for the board to focus on those rules that have the greatest impact on the general use and enjoyment of the common areas and the overall protection of owners’ assets.

The board is using common sense, and were your board membership to change, you might still feel the association is not being managed to your satisfaction.

Civil Code section 7231 imposes a requirement on each board director to serve in good faith and in a manner that a director reasonably believes to be in the best interest of the association. To meet these standards, the board must make reasonable inquiries and obtain the necessary information to make informed decisions before acting. The fact that you believe your board members are not acting fast enough doesn’t mean that they aren’t handling the problem.

Even a board that decides to strictly enforce various covenants, conditions and restriction must tread carefully.

Citations should be well substantiated and rationally related to the underlying purpose of a regulation. Fines and penalties must be reasonable and they must be imposed equally on all violators, who must be given the right to a hearing and opportunity to present contrary or mitigating evidence. If they are not given that right, the board’s actions may subject the association to a lawsuit.

You also should check your association’s CC&Rs, as well as its rules and regulations, to determine whether there is any basis for the violations you allege. One of the chief complaints you raise, for example, is not even an infraction.

In a common-interest development where every owner has a fractional interest in the development, it is irrelevant whether condominium owners go over to the single-family-home neighborhoods or use those sidewalks and amenities. If the developer meant to segregate the property, this would have surfaced in the approved subdivision plans.

Condominium owners also own a fractional interest in your side of the development and their monthly assessment fees pay for their right to access the single-family home neighborhoods and their amenities.

Your board’s obligation is to manage the association for everyone’s use and enjoyment, and that includes taking reasonable measures to safeguard your community. Nothing you’ve said implies that the board is not doing so.

If you want to have a more significant impact on where you live, volunteer to run for a position on the board at your next election.

If you can’t accept that you don’t have total control over the use of common-area property, then you should consider moving out of a common-interest development.

Zachary Levine, a partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian, JD, P.O. Box 10490, Marina del Rey, CA 90295 or [email protected]