There’s a new disease out there. This sickness ignores socio-economic status and geographic boundaries and seems to infect many HOA Board members and community managers alike. Your Association might already be infected.
This new sickness is market driven. As associations struggle financially to pay landscapers and save for big-ticket rainy day projects, Enforcement-Phobia is spreading. In addition to roots in the financial crisis, there are political indications of the phobia as well. Boards and managers are all too concerned about what owners in violation might think or do. Along with the financial pinch and the political push, there are also strong misperceptions that enforcing the express terms of a community’s governing documents is bad for community. And the cancer of non-compliance spreads…
Enforcement-Phobia is the chronic fear of the political, financial and social costs of taking action to enforce an Association’s governing documents. Directors and managers are often blind to the real conditions of properties overgrown with weeds, cluttered with unapproved architectural changes and overrun with over-sized vehicles parking on too narrow private streets. The neglected home may be the source of great frustration in the neighborhood, but the Board responds with lackluster empathy and empty pockets. The deeper the disease digs into communities the less inclined an Association and its leaders are to take any action. Symptoms of owner neglect and Association ignorance of that neglect lead only to more neglect.
Treating the symptoms (and not the disease) then becomes the order of the Board. In many neighborhoods, the Association might just take on the role of the property owner and clean up the violation itself. Other communities organize workdays so that together the whole can try to cure the disease with activism.
Some Boards have even turned to lure of fines, employing some backdoor cure by forcing owners to reach into their wallets. But the phobia is soon traded for another sickness – the disease of dependency on fine revenue. Board members become addicted to the possibility of padding the association’s ailing budget with $25 fines rather than pursuing a homeowner’s compliance. Already strung out on fines and the hope of the next fine fix, these boards even trade away their good and sound discretion to deal with a neighbor’s violations. They forever contract away that authority to a collection agency that cares nothing about a weed-free yard or the removal of an unapproved purple gazebo. The fear of taking real enforcement action is temporarily satisfied by the short fix of fines.
Once the disease has ravaged the neighborhood and afforded neglectful or absent owners the freedom to violate the documents, curing the phobia will be a challenge. It’s never too late for a Board to do the right thing, but curing the community of this illness and its many side effects is a painful process. The disease has afforded owners the assurance of someone else dealing with their violations while other owners have become accustomed to paying a small fine so that their violations can continue.
But the Board has the power (and here in Arizona, the legal obligation) to enforce the express terms of the association’s governing documents. The disease can be stopped and the vicious spread of unresolved CC&R violations curtailed. The cure for this phobia is simple – enforce the association’s documents. Here are just a few prescriptions for helping your community properly enforce its restrictions and to gain an owner’s compliance:
1) Be fair and consistent in your approach to inspecting properties and notifying owners about their violations;
2) Have a comprehensive enforcement policy and follow it;
3) If a particular CC&R provision is troublesome or universally unenforceable, amend it;
4) Think about increasing fine amounts to levels that would deter owners from continuing CC&R violations;
5) Communicate well and often with homeowners about violations and about the path to compliance; and
6) Use self-help (if allowed by the CC&Rs) thoughtfully.
Fear is debilitating in association governance. Breaking the cycle of non-compliance is the Board’s choice and its obligation.