Q&A: Enforcement of Violations
Q. One resident constantly complains about another resident who is in violation of a HOA rule. As a board we are aware of the violation but allow the situation because of the personal situation involved. We have communicated to the complaining resident we do not wish to discuss why we allow this violation. Do we have to provide an answer?
A. Very often, seemingly small changes in the facts of a matter can make a significant difference in the correct legal advice. For instance, your question indicates that a resident is complaining about a violation of a “rule.” It makes a difference whether the rule is a restriction contained in your HOA’s declaration, or a rule that the governing board adopted. Generally, the board has a higher duty to enforce the declaration’s restrictions, then it does in connection with its own rules, with respect to which it has greater flexibility.
Further, you indicate that board would prefer not to aggressively pursue the rule violation because of a personal situation impacting the owner against whom a violation is alleged and you prefer not to divulge the reason for the board’s inaction to the complaining owner. The nature of the personal situation may be meaningful in providing an answer to your inquiry. For example, assuming, hypothetically, the rule in question involves a restriction against creating excessive noise, but the resident making the noise needs to have temporary medical equipment that is the cause of the noise. Depending on all the facts, it may be that the person causing the noise is entitled to an accommodation under the Federal Fair Housing Act. In such a case the board would be obligated to allow an accommodation in the enforcement of the restriction if it is “reasonable” to do so. Further, the law concerning making accommodations to people who are disabled prohibits the disclosure of confidential information concerning the disability – although it doesn’t prohibit the board from stating that it is obligated to make an accommodation because there is a claim of disability, without providing details.
Another example might be that the HOA has a restriction against conducting any business from a home. Perhaps the owner is out of work and is a professional who can’t afford to rent an office. Therefore, the owner opens her business from her home. As a result, that owner starts seeing clients from her home and has a secretary working from the house. In that case, there is no law that protects that activity and the board has a duty to take reasonable action to enforce the restrictions. In order to avoid a costly legal dispute with the owner conducting the business, the board may lawfully provide the offending owner with a reasonably short period of time – say, for instance, 30 days – thereby giving that owner an opportunity to earn some income but also require that she find another location for his or her business.
While the board may be empathetic to an owner facing personal difficulties, it still has a duty to enforce the restrictions contained in a declaration. The law doesn’t mandate that a board show no humanity to their fellow residents by temporarily allowing a violation, particularly if the violation is technical in nature and does not cause any harm to the welfare of the other residents. Ultimately, however, the board has the duty to enforce the use restrictions, particularly where another owner is validly complaining about a violation and no law protects the violating owner. Because these situations can be nuanced and the correct answer depends on an analysis of all of the facts, we urge you to discuss this with an attorney who specializes in community association law.