Weak response to code complaints a sign of the times

Situation has some owners questioning value of quarterly dues

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Jun. 2, 2010

Share this Story:

Situation has some owners questioning value of quarterly dues

Benny Kass
Inman News

DEAR BENNY: For 14 years I have lived in a planned unit development (PUD) with strong (or so I thought) CC&Rs and an association that supposedly enforces its legal documents. A year and a half ago I noticed my neighbor who lives on the street below mine had three aspen trees that had grown well above the roof line and were now impacting my view.

The CC&Rs require that prior to doing any landscaping (i.e., planting trees) an owner must share the plans with neighbors who may be impacted by the plans. This never happened. More important, any trees that rise above the roof line and impact a view are in violation of the CC&Rs. Consequently, my neighbor has two violations.

I brought this to the attention of our association board both verbally at a meeting and in writing. After several telephone messages and letters to the manager, we finally made contact. The manager claimed she sent a letter to the offending party. I told her nothing had been done, so she stated they'd send a second letter.

I sent another letter to the board and manager recently requesting again that they inform me of any subsequent action they had taken. Needless to say, I've heard nothing.

Are there any state oversight entities that will hear my complaint about my neighbor's noncompliance and the board and manager's lack of action to enforce our CC&Rs. I pay my $200 per quarter association fees in a timely manner and am now wondering what I am getting for this money if our management company shirks its responsibility to enforce the CC&Rs. --Karen

DEAR KAREN: For the benefit of my readers, CC&Rs is short for "covenants, conditions and restrictions." In a condominium, the legal documents generally are the declaration and the bylaws. In a homeowners association (HOA) and a PUD, the legal documents are referred to as the CC&Rs.

Boards of directors in community associations often find themselves in a dilemma. A unit owner is in violation of a particular rule or regulation, but the board is not inclined to spend a lot of money and time challenging that owner. While I do not belittle your concerns, in reality this is a relatively minor issue facing many associations. Especially in today's economy, when many units and houses have been foreclosed upon and owners are not paying their association fees, board members are reluctant to spend money on lawyers to enforce all of the rules. In fact, many boards just do not have the money to do this.

I am not suggesting that rules should not be enforced, but a board of directors does have (or should have) some discretion as to what rules they will vigorously enforce.

However, the board is paying the manager, and that person should be more proactive. You should demand to see copies of the letters the manager claims to have sent. Furthermore, you should personally contact the neighbors and explain the situation to them.

There is, however, a problem if a board does not enforce all of its regulations. One defense that unit owners often raise when challenged in court is that the board is not enforcing its rules uniformly: "Why should I follow the rule when Johnny and Mary down the street are doing the same thing and you are not going after them?"

Accordingly, your board should review the facts carefully and determine if this is a matter worth pursuing.

In many jurisdictions, the courts follow what is known as the "business judgment rule." In other words, the courts take the position that unless a board is acting illegally -- or someone is stealing money -- the courts will not second-guess a volunteer board of directors, even if the board is wrong and makes mistakes.

In some jurisdictions, however, such as in the District of Columbia where I practice law, the courts have rejected the business judgment rule in favor of a "reasonable test" -- i.e., whether the board acted reasonable under all of the circumstances. This puts a higher burden on the board to make sure that its decisions have been carefully considered, and that it has communicated its concerns to the membership.

It's not an easy question. However, you still have the legal right to file suit against your neighbor for the alleged breach of the CC&Rs. Unfortunately, not too many states have agencies that regulate and mediate disputes in community associations.

DEAR BENNY: My girlfriend and I bought a house in May 2009. Both names are on the title. We amended my 2008 taxes to receive the $8,000 first-time homebuyer credit, which we have already received and spent. 

My girlfriend moved out last week and it does not appear she is coming back. I am staying in the house and will continue to make the mortgage payments. I have five questions:

1. Is there anyway to remove her name from the title without refinancing?

Page: 1 2 |Next
Add to favoritesAdd to Favorites PrintPrint Send to friendSend to Friend

COMMENTS

ADD COMMENT

Rate:
(HTML and URLs prohibited)