STAYING SAFE AND SANE AT HOME Enforcement of Rules and Restrictions During COVID 19Drew Hendricks
“Dear HOA, please DO SOMETHING about my neighbors:
COVID day 19: Ping – pong – The neighbors are using COVID 19 to hone their ping pong skills until midnight each night!
COVID day 33: College students have come home with their cars and have no permits- there’s no place to park!
COVID day 75: A new patio cover is going up next door (another COVID home project). Do they have approval?
COVID day 114: Even the best music playlist doesn’t sound good at 4:30 a.m. when the neighbor exercises. When will this end??”
As homes have evolved into offices, classrooms, gyms, and playgrounds during COVID 19, owners have increased their demands that associations “do something” to enforce violations.
Even during “normal” times, determining the nature and degree of enforcement action needed is challenging. A television commercial in which a board president uses a chainsaw to cut down an owner’s mailbox for being two inches too tall mocks the concept of “too strict”. On the other hand, potential liability may result if a board takes little or no action, absent a reasoned and documented decision not to do so.
The current pandemic does not mean enforcement should be canceled! Rather, careful but purposeful enforcement steps should be taken, in a reasonable and practical manner, to help avoid associations being sued for not doing enough.
Duty to Enforce. The CC&Rs and/or Bylaws will set forth an Association’s responsibility and authority to “enforce” the governing documents. This duty to enforce is also reiterated under California law. See Posey v. Leavitt (1991) 229 Cal. App. 3d 1236 (an association may be held liable for the failure to enforce); See Civil Code Section 5975(a) (covenants are enforceable). The manner and means of enforcement, particularly during the pandemic, must be considered in light of the governing documents and the law.
Follow Your Processes/Procedures. The governing documents, such as an enforcement policy, may mandate certain enforcement action, such as that a hearing “shall” be held or a fine “shall” be imposed, versus “may”. A board is required to follow its enforcement processes and procedures to obtain court relief. See Ironwood Owners Association IX v. Solomon (1986) 178 Cal. App. 3d 76. An association can be sued for failing to enforce, including for disputes involving neighbors. Cohen v. Kite Hill (1983) 142 Cal. App. 3d 642 at 653.
With regard to the constant midnight ping pong game or thumping exercise routine, if the documents require a fine to be levied, do so after notice and hearing. Consider waiving or reducing the fine if the owner complies within a reasonable time. Invite the owner to a hearing to discuss the problem and a possible solution, even if no fine is required.
For the home-bound college students with cars, adopt emergency rules to issue additional temporary permits, with periodic review for continuing need. Strict enforcement and towing should remain for blocking fire lanes, entrances and fire hydrants.
Discretion to Pursue Legal Action. If administrative enforcement efforts fail, the board can decide whether or not to pursue a lawsuit. See Beehan v. Lido Isle Community Association (1977) 70 Cal. App. 3d 858. During the pandemic where residents need to work, learn or exercise at home, and the courts are backlogged, a board needs to weigh the costs and benefits of a lawsuit (severity of the violation, chance of prevailing, and prospect for recovery of attorneys’ fees). Any reasoned decision to proceed, or not proceed, should be clearly documented in a Board resolution.
Timing. The Board has some discretion as to timing of enforcement efforts. See Pacific Hills v. Prun (2008) 160 Cal. App. 4th, in which an owner installed a mechanical gate without association approval. Enforcement was pursued over several years before a lawsuit was filed. The owner argued the association waited too long. However, the court found no prejudice, as from day one, the board and its legal counsel informed the owner the gate was in violation. Thus, the ability to try to resolve violations over a period of time may be helpful during COVID 19. Document all enforcement efforts and any basis for extensions of time to comply, especially based on delays due to COVID (complete construction or landscaping). However, discuss with your legal counsel any firm dates by which action must be taken (i.e. statutes of limitation).
Immediate Action May Be Needed. The primary function of an association is to preserve the value and aesthetics of the community. See Cohen v. Kite Hill (1983) 142 Cal. App. 3d 642. During COVID 19, planting flowers in the common area may warrant a violation letter. However, if an owner embarks on an unauthorized room addition or wants to pour concrete within the entire front yard impacting drainage and appearance, then a more significant and swift response is warranted. Have legal counsel send a cease and desist letter. A quick court order (Temporary Restraining Order) may be needed in order to prevent long term harm which will be difficult and costly to undo.
For the patio cover COVID project already completed over the weekend, pursuant to Ironwood, an association must still review and render a written decision after the fact. Removal or modification can be pursued if it violates architectural standards.
Use Dispute Resolution. The pandemic will inevitably tighten budgets, leaving less funding available for enforcement efforts. Use the IDR meet and confer process between a board member and owner and/or their designee at no cost. If the dispute persists, formal dispute resolution is available (i.e. mediation), at a lower cost than usual by video or phone conference.
Communicate. Tell owners that the association appreciates their cooperation, compliance and courtesy for one’s neighbors more than ever before, and that the strength and success of the community depends on it! Remind owners about architectural requirements, and not to modify the Common Area.
Engaging in enforcement on a reasonable and practical level and documenting each step (in writing) will go a long way to help reduce liability during these times.