Issues can sometimes arise when homeowner association boards of directors implement resolutions, procedures, and rules and regulations that are in addition to what is mandated by their declaration of covenants, bylaws, or articles of incorporation. These implementations, or subsidiary documents, can also be in addition to established state statutes. These subsidiary documents typically originate due to covenant enforcement and an attempt to help address a problem.
All the potential issues that could arise from these subsidiary documents can be difficult to foresee. However, what is easy to foresee is that attempting to predict what someone in the membership would possibly do, and to what extent, is next to impossible. Human nature being what it is makes covenant enforcement a large enough challenge as it stands.
A common issue that is addressed in subsidiary documents is a clarification or expansion of covenant enforcement. These provisions are often placed in the rules and regulations in a quest to be fair and even-handed. All boards of directors want to be responsible to the membership that elected them and to not appear arbitrary with any enforcement decision. So, these provisions are understandable and, in most cases, are of no detriment to the homeowner association. However, there can be unintended consequences of not being able to predict every eventuality and, if predictable, to what degree a member can exceed those predictions.
It is common for a board of directors to put a provision in their rules and regulations regarding additional processes of covenant enforcement. These additional processes can be above and beyond what is required in the declaration of covenants and by state statutes. Additional processes such as multiple warning letters being mailed, sending violation letters via certified mail, predetermined violation fines, etc. The real problem arises with these additional processes when there is an egregious or unpredictable covenant violation.
The author of this blog was involved with managing a single-family home HOA where a member had a 16th birthday party for his daughter. This event was not the everyday ordinary child’s birthday party. The background, as the author of this blog understands, is the sixteen-year-old’s parents had recently gone through a less than amicable divorce. The reportedly wronged party in the divorce was a member of the HOA and it appears he was determined to throw a party that his sixteen-year-old daughter would never forget. It is assumed the father wanted his ex-wife to be aware of what all he had done for their daughter as well. However, there is no indication that the father purposely wanted the entire HOA membership to never forget his daughter’s party either, but that is how it worked out.
The short version of the “party” is that reportedly 150 invited guests showed up along with 150 uninvited guests. By most estimates, and police estimates, there were around 300 people at the party. It was quite the event to crash considering the entertainment and the overall hospitality of the hosts. In the backyard next to the swimming pool, which was full of invited and uninvited guests, many apparently intoxicated, there was a rock band set up to perform. The number and sheer size of the rock band’s speakers and amplifiers would easily rival what is set up in open-air football stadiums for Rolling Stones’ performances. In addition, in the front yard set up on a platform, was a rap group that went on after the completion of the rock band’s set. Even without electric guitars, the rap group was just as loud, if not louder, than the rock band.
After the above examples, the casual reader may believe the party could not have had that many more unusual attributes. That casual reader would be wrong because there was also an elephant providing party guests rides around the homeowner association. Apparently, the birthday girl really liked elephants, so her father produced an elephant.
If all that was not enough, after the rap artist performed, there was a professional fireworks show.
As to be expected, there were complaints about 300 guests parking in other HOA member’s front yards. Music that was so loud the police threatened to arrest the sixteen-year-old’s father if they were called back out to deal with another noise complaint. The fireworks display, for some reason, drew the most complaints from the HOA members, even though as compared to all the other events going on that day, the fireworks only lasted ten minutes. Happily, there were no complaints about the elephant rides around the HOA. This may have been due to the elephant’s handler having a helper with a wheelbarrow and shovel following them on the brief riding excursions.
In that homeowner association’s rules and regulations, there was a provision that states; “All initial violations of the declaration of covenants or rules and regulations must first be dealt with by a warning letter and 15 days to cure the violation. If the violation is not cured within 15 days, a follow-up warning letter is to be sent. If at the end of this 30-day period and the violation is still not cured a final warning letter is to be mailed…” Also found in this homeowner association’s rules and regulations was a list of possible violations along with the applicable fine amount. The only applicable violation in this situation was “disturbing the peace.” The established fine was $15. Considering these enforcement requirements in the rules and regulations, the real good news is that the birthday girl was an only child.
This is an extreme example, but serious covenant violations happen every day and may have to be addressed more expeditiously. If the rules and regulations mandate that three warning letters must be mailed before the member can be called before the board of directors, this is the due process of the homeowner association. If the established due process is not followed, the homeowner association could jeopardize its legal authority of enforcement.
There may be a misconception here that what boards establish in their rules and regulations, resolutions, and minutes are not as valid as the other governing documents. Nothing could be further from the truth. Rules and regulations, resolutions, and minutes are all official and legal documents of the homeowner association. While the other governing documents and state statutes can take precedence over board subsidiary documents, these subsidiary documents can still be just as binding.
In most cases, subsidiary documents are easier to revise than the other governing documents. However, if subsidiary documents are in place when something happens, they could be considered part of the homeowner association’s due process and could be a hindrance to effective enforcement. If a board of directors has questions about this topic, the homeowner association’s attorney should be consulted.
Interested in reading more about Covenant Enforcement? See our 6 part series:
- Part One – Covenant Violations
- Part Two – “I want to opt out of the HOA”
- Part Three – How are violations determined?
- Part Four – How are managers trained to find violations?
- Part Five – Hearing Letters
- Part Six – “Nothing like that would happen in our community even if we did not have the HOA”
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Legal Disclaimer: This blog is presented solely for entertainment and educational purposes. The blog’s author is not an attorney, nor offering legal advice. The blog’s author and publisher are not offering or presenting this work as legal or any professional services advice or guidance. State statutes regarding homeowner associations can vary from one state to another so state statutes will need to be reviewed and may conflict with the material found within this blog. Every homeowner association is different, and the advice and strategies contained herein may not be suitable for every situation. The reader should always seek the services of a competent and experienced homeowner association attorney who specializes in homeowner association law.