Published on: January 23, 2001
n a recent issue of Common Ground, CAI National’s bi-monthly magazine, there was an article which offered that author’s opinion that Boards, or Covenants Enforcement Committees, should not periodically tour a complex looking for violations. That, the author felt, resulted in unwarranted intrusions on owners’ privacy and fostered a police state mentality. To his view the issue of violations should be complaint driven. Interestingly, a number of readers responded to this article vociferously criticizing the author’s view and supporting routine, periodic inspections for violations.
To this writer’s view there is a reasonable middle ground. In the first instance violations should be complaint driven. If the rules are to mean anything, the Community must support them. Thus, requiring complaints can foster Owner involvement in maintaining the Communities’ standards.
Secondly, it is unfair for volunteers to be placed in the position of enforcing the rules unless Owners are prepared to stand behind their complaints. Thus, complaints should be in writing and signed.
Thirdly, many complaints are of the subjective variety – for instance, noise complaints. Without a complaining witness there is no provable violation. Similarly, an unrestricted pet on the common areas requires a witness. Thus, the complainer must be prepared to support their Complaint.
All this said, however, Board Members and/or Management should not be expected to have blinders on. If a violation comes to their attention as they traverse the property, they should not ignore it. This, however, is a far cry from seeking out and/or inspecting for violations.
In a case reported in the September, 1997 issue of the Law Reporter a Colorado Court upheld a complaint driven violations system from attack. The violating Owner argued that the Board had waived the rule because there were other identical violations upon which the Board had not acted. At trial, the Board was able to show that it promptly acted upon all violations brought to its attention by complaint. This the Court found acceptable. Similarly, the Massachusetts Appeal Court in the case of Noble v. Murphy upheld a complaint/observation driven pet enforcement policy, noting that the Board would be subject to converse complaint if it actively sought out violations. Rather, the Court reasoned that a more harmonious community is achieved if a Board limits itself to violations which came to its attention through complaint or open and obvious existence.
Accepting then that such a system is appropriate, what proof is necessary. This, of course, will vary from violation to violation. With observable violations pictures are worth a thousand complaints. However, as noted in another case reviewed in the September, 1997 issue of the CAI Law Reporter, care must be taken in proper documentation.
In this Texas case the Association’s Declaration prohibited cars being stored for more than 48 hours unless in a garage. The Owner apparently parked several cars in their driveway. The Board took photos. Unfortunately, they were either not dated or had the same date. Thus, the photos didn’t prove that the cars were there more than forty-eight hours and the Owners testified that they used each car at least once a day. Therefore, the Court ruled that the Association hadn’t met its burden of proof.
Would continuous film of 48 hours duration been necessary in this case? Likely not. Rather, dated photos showing the same car in the same place over two or more days likely would have been sufficient. The problem was that this Board hadn’t such photos.
As noted, each case will vary. What is critical, however, is to carefully analyze the relevant rule and ensure that adequate proof exists to support a conclusion that a violation occurred. This can be difficult with such things as noise complaints. For this reason the CAI Attorneys Committee several years ago adopted a practice standard that Boards should not yet get involved in such complaints where it is but one resident complaining of another without corroboration. If noise is a problem it should be to more than one neighbor. Boards should not get caught up in an intraresident dispute.
For rules to having meaning and find support in the Community they must be enforced. However, enforcement must be consistent and supportable. Communities which work well have rules supported by the majority and administered in an open, reasoned manner. Anonymous complaints or roaming rules enforcers have no place in rational Communities.