Enforcing rules and covenants may be one of the least enjoyable aspects of serving on a community association’s board of directors.  However, well-reasoned and consistent enforcement is imperative to keeping harmony within a community association.  Consistency is also imperative to keep rules and covenants enforceable in a court of law.  The following list catalogues the top ten mistakes that associations make when enforcing their rules and covenants, making an often difficult task more difficult.

10.  Drafting and Enforcing Unclear, Ambiguous, or Unwritten Rules and Covenants.  A board cannot expect members to comply with rules or covenants that fail to provide clear-cut boundaries of what is allowed and what is prohibited.  When making rules, be sure to clarify what exactly the rule covers.  For example, if an association wishes to have a rule prohibiting nuisances, it must define what constitutes a nuisance so that members will be aware if their activities fall within the nuisance category.  If it wishes to prohibit commercial vehicles in the covenants, it must define what is considered a commercial vehicle and explain whether the prohibition includes those vehicles that may be parked in an area concealed from the view of the general public.  By embellishing and clarifying its rules and covenants, an association can bypass confusion, unintentional violations, and the excuse of “I didn’t know it wasn’t allowed.”

9.  Approving Incomplete or Unclear Applications.   Before granting approval to applications, an association should make sure that it has all the pertinent details of the project before it.  If a member wants to make an addition to his or her home, the board or architectural committee should make sure they know the style of architecture planned, what types of materials will be used, and even what color the final product will be painted.  Examine the consequences of what is being approved so that applications are not unwittingly approved too broadly.  For example, a board may unintentionally approve the use of a material that is not allowed in the community if the board does not require all the specifics listed in the plans it reviews and approves.

8.  Giving verbal authorization for part of all of an approval of plans or making verbal conditions on a written approval.  When granting an approval, any conditions to that approval must be spelled out in writing just as the approval itself is in writing.  If a board member verbally requires additional steps, those steps will be difficult to require if the homeowner chooses not to do them.  For example a board is provided verbal explanation of how an addition will be built and signs an approval for that addition and verbally requires that the homeowner provide a copy of the plans for the board.  If the plans are different than what was verbally said or if the plans are not submitted, the board will have a difficult time proving what is required in court if the only thing in writing is an approval.

7.  Not Following An Association’s Governing Documents and Procedures.  To avoid procedural confusion, time-consuming challenges of selective enforcement, and even losing a winning case on a procedural technicality, a board should follow the dictates of its governing documents and established procedures.  For example, an association should establish and follow a written procedure for violations such as sending out three warning letters before referring the matter to the association’s attorney.  It should have an appeals procedure that the board does not deviate from.  Additionally, all architectural request applications should be treated with equal scrutiny and evaluated under the same criteria.  When a board fails to follow its procedures consistently, its decisions are difficult to defend in front of a court.  An association can simplify the compliance of its governing documents and procedures by developing checklist forms.
 
6.  Failing to Keep Written Records or Document Board Decisions in Writing.  Written documents provide an objective basis for proving what decisions or actions have been carried out by the board and the reasons for those decisions or actions.  In court, the production of written documents will often cut short the debate of who said or promised what.  Require all architectural applications to be granted in writing by the entire board or architectural committee.  Additionally, an association should advise all committee or board members to refrain from offering any verbal comments regarding improvements or proposed improvements.  This prevents homeowners from relying on verbal comments of a board or committee member and then forging ahead with the improvement without formal approval.  Additionally, if the board makes the decision not to pursue a particular covenant violation, it should pass a resolution to document the reasons.  This documentation will provide a defense to a claim of waiver if one is to arise further down the road.  Again, forms can help to insure that important information is recorded appropriately.

5.   Enforcing Rules and Covenants That Violate the Federal Fair Housing Amendments Act (“FHAA”).  The FHAA prohibits associations from enforcing certain types of rules and covenants that have the effect of discriminating against an individual’s familial status or preventing disabled residents from fully enjoying their home to the same extent as non-disabled residents.  For example, rules that state “no children may skateboard on driveways” or “children may not roughhouse in the pool” violate the FHAA as they can be interpreted as discriminating against families with children.  An association would be better to focus on the behavior itself, rewriting these rules as “no skateboarding on driveways” and “no roughhousing in the pool.”  Additionally, the FHAA requires associations to make reasonable accommodations for disabled residents.  Allowing a disabled resident to keep a service animal such as a Seeing Eye dog provides an example of a mandatory reasonable accommodation.   

4.  Resorting to Self-help to Remedy a Violation.  Even if a declaration gives permission to resort to self-help measures, a board should almost never employ such tactics like entering an owner’s property to remove an improvement or shutting off the utilities in an owner’s unit.  Not only can self-help measures result in a breach of the peace citation from the police, the readiness of property owners to protect their property by force should never be underestimated.  Generally, the police will not care what your declaration allows and will not permit “trespassing” on another’s property without a court order.  Only in the rare circumstance that a unit has been left vacant by an owner should a board consider self-help.  Even then, before turning towards self-help, a board should always first seek legal advice to make sure the declaration allows it and that all the required steps have been taken before resorting to self-help.

3.  Failing to File Suit Within One Year of Date a Building Restriction Violation Was or Should Have Been Discovered.  Although the desire not to sue your neighbors is understandable, if an association waits too long to file suit when faced with a building violation, it may find that it has lost its ability to do so.  The Colorado Common Interest Ownership Act (“CCIOA”) requires an association to file a lawsuit regarding a violation of any building restriction within one year from the date from which the association knew, or in the exercise of reasonable diligence should have known, of the violation. This requirement means that actions like sending a violation notification letter or having other communications with the violator will not exempt an association from the mandate to file within a year. 

2.  Denying an Application Based on Criteria Not Listed In the Covenants.  When denying a homeowner’s application, a board or committee should echo the language contained in its association’s covenants to avoid the danger of a lawsuit.  For example, if a covenant prohibits improvements that “are not in harmony with surrounding structures,” use this language when denying an application for a non-conforming structure.  Only after using the pertinent language should a board or committee expound on the reasons for the denial.  

1.  Fining an Owner without Giving Notice and Opportunity for a Hearing.  Before a fine is levied, homeowners have the statutory right to be given notice and the opportunity for a hearing concerning the alleged violation giving rise to the fine.  Failure to follow the correct procedures makes the fine unenforceable and uncollectible.  Giving the homeowner the opportunity for a hearing meets this requirement regardless of whether the homeowner fails to respond to the notice, chooses not to request one, or does not attend the requested scheduled hearing.  Having written procedures on how to give notice and conduct a violations hearing will ensure that the board follows the necessary steps to meet the requirement.

Lunch Forums
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July 13
SB 89
12:00 - 1:30 PM

Arvada Office
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Suite 300
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August 3
Duty to Disclose?
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5610 Ward Road
Suite 300
(1 mile north of I-70)



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July 19
Understanding Your Governing Documents
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July 25
SB 89
6:00 - 9:00 PM

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Suite 300
(1 mile north of I-70)

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