In community associations, covenant and rule violations are brought to the attention of the board of directors through many different sources, including managers, committee members, board members, and residents. When a resident is the source of the association’s knowledge of a violation, and the violating homeowner becomes aware of this, the violating homeowner often wants to know the identity of the accuser. The question then arises is the board required to identify the complaining homeowner and should the board identify the complaining homeowner.
 
The answer to the first part of that question is that, unless required by the governing documents, boards do not have to provide the name of a complaining homeowner to the homeowner accused of the violation. In other words, the violating homeowner does not have a “right to confront” his or her accuser. This “right to confront” concept is considered an essential part of due process in any action where the government is attempting to deprive a person of life, liberty or property. As such, the most common application of the right to confront is found in the criminal justice system. This constitutionally guaranteed right to confront one’s accuser is not mandated in civil actions between individual parties. Such is the case where an association is enforcing its covenants and rules against a resident.
 
The answer to the second part of the question posed is that boards may not want to identify the complaining resident for fear that revealing the owner’s anonymity might make the resident, and others, less willing to come forward in the future when they know of a violation. If a board has a policy of only taking enforcement action upon receiving a “complaint”, disclosing the name of the complaining resident may have a chilling effect on covenant and rule enforcement efforts. That said, if the covenant enforcement progresses to litigation, the association may have no alternative but to disclose the identity of the complaining party.
 
Boards who receive and act upon anonymous complaints or complaints from other residents should (through a board or committee member or the manager) independently verify the violation if at all possible. This may be difficult to do with one-time violations that occur over a short period of time, such as pet, noise or parking violations, but should be done with other violations that are on-going, such as construction and landscaping projects. When the violation is independently verified by a board or committee member or manager, that individual can then become the “complaining” party, and the anonymous resident can retain his or her anonymity. This is also essential for the hearing and fining process. In order for the board or committee to impose a fine it must first find that a violation has occurred. If there is no independent verification by the manager or board/committee member, the complaining party will need to be present at the hearing to “testify” and answer questions from the board as well as from the alleged violator.
 
However, if you find yourself confronting this situation with some frequency, it might be a good idea to implement a policy with protections that create an enforcement procedure that your owners consider fair, and that leads to accurate, reasonable decisions. This may involve such devices as:

•     A written reminder of the rule or covenant on an initial complaint

•     A written notice of subsequent complaints

•     The right to appear before the board or committee to discuss the alleged violation

•     The right to hear evidence of the alleged violation (from the actual complaining party or from a spokesperson for the board, such as the manager)

•     The right to present evidence related to the alleged violation

•     The right to question the person who witnessed the alleged violation

•     The right to be represented by legal counsel

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