How To Properly Handle HOA Violation Notices
On This Page:
Overview
One of the battles homeowners living in HOA communities face is how to properly handle situations when a notice of violation from the homeowners’ association is received.
Understanding what the association’s board of directors must do to provide proper notice of a violation is critical. In general, a concept of due process, meaning notice, and an opportunity to be heard, apply to violation processes involving homeowner’s associations.
This article will walk HOA members through the processes involved in the enforcement of the community rules.
Homeowner’s Right to Notice of Violation
The first step in the process of an association exercising its authority to enforce its rules or Covenants, Conditions, and Restrictions (CC&Rs), involves proper notification to the homeowner. Depending on where the HOA sits, there can be differences in how associations must notify homeowners of alleged violations.
Some state laws regulate the association’s enforcement process in terms of how and when associations must provide violation notices to homeowners. In other states that have less formal legal regulation, the association’s declaration governs the time and method of violation notices.
An example of this might be when a homeowner has failed to mow his or her yard. More significant issues might involve instances where an HOA member has installed or constructed something on his or her property that violates the rules or the CC&Rs.
At a minimum, some state laws provide for specific notification requirements to ensure that homeowners receive a reasonable due process, which generally begins with proper notification so that a homeowner can be adequately informed of the nature of the violation and have an opportunity to respond to it.
Homeowners need to be familiar with either applicable state law that governs the association’s enforcement process or the association’s enforcement policy, which likely outlines in detail the notice procedures the association must follow.
Homeowners’ Right to a Hearing
After a homeowner receives a notice of violation, typically the next step in the process is a hearing before the HOA Board. This concept comes from a basic set of rules that are embedded in many areas of the law, which is, when there is an alleged violation, homeowners must receive adequate notice and opportunity to be heard concerning the violation.
Generally, there is an advance notification requirement also so that the community member can have an adequate opportunity to plan for and attend the hearing. This step is especially helpful in cases where a member of an association has a reasonable argument concerning the alleged violation and would like the opportunity to present evidence that the association’s board may consider.
HOA members must understand what the Bylaws provide and the community rules to prepare for a hearing adequately.
Homeowners’ Right to Appeal
Once the hearing is held, the association’s board renders a written decision concerning the violation within the timeframe provided by the CC&Rs. The board may find that there was no violation after review of the homeowner’s evidence or impose a fine for non-compliance if the owner fails to remedy the violation.
Homeowners who are not satisfied with the outcome of a hearing may have appeal rights, which are either determined by state law or by the association’s documents.
Association’s Decisions Must be Reasonable and Non-Discriminatory
Among the most important considerations for both community members and homeowner associations alike is that enforcement of rules and CC&Rs must be reasonable and non-discriminatory. What this means is that associations must be consistent when enforcing their rules. Also, the association’s board cannot act arbitrarily or unreasonably when issuing violation notices.
Compliance With Notice and Hearing Requirements
If the HOA fails to give the homeowner adequate written violation notice or fails to follow notice requirements, the HOA will have to go back and reissue a proper notice with the required information or in the time frame that is required by the association’s CC&Rs or state law.
However, this does not solve the practical problem. While it may in the member’s best interest to object to lack of proper notification or information if warranted, the association will have the authority to continue with enforcement action if the violation is valid and the homeowner fails to take the necessary steps to bring the property into compliance.
If a court battle ensues, inadequate notice issues can be raised in that setting as well. However, again that does not deal with the substantive issue at hand and often leads to all parties spending more money and the issue not getting resolved according to anyone’s satisfaction.
Dispute Resolution Through Arbitration or Mediation
In states that do provide for arbitration or other processes for dealing with enforcement matters, the process may involve an arbitration or mediation panel depending on the outcome of the violation hearing.
Members can visit the American Arbitration Association and AAA Mediation.org for helpful information and resources.
It would also be beneficial for HOA members to learn how the arbitrator or mediator has decided on previous cases and prepare accordingly.
Enforcement Lawsuit
If a violation is valid and the association has followed all the due-process requirements to enforce its rules and has given the owner an opportunity to cure the violation, the association may have the authority to file an enforcement action with the court to force compliance.
Enforcement litigation is the last place that any community member or association wants to be. The process is expensive, time-consuming, and leads to bad feelings amongst members of the HOA who are still neighbors. Thus, this is not something that should be embarked on lightly.
It would be in an HOA’s best interest to informally attempt to discuss a rules violation with a member before embarking on the formal notification process.
Conclusion
Homeowners should have a clear understanding of the association’s community rules and enforcement process to ensure they receive adequate notice of an alleged violation. When appropriate, a challenge to the process can serve to protect a homeowner’s rights and property interests. It can also protect members from a homeowners’ association that has overstepped its bounds or has only selectively enforced various rules and regulations.
The fallout that occurs from the failure to comply with the CC&Rs does not serve anyone’s interest. Instead, it serves to tear apart rather than build relationships between members of the homeowners’ association.