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I often get questions from Boards asking what can be done to ensure compliance with the governing documents. My answer is always “Stop being Mr. Nice Guy!” If the violators do not believe there will be repercussions for their acts then there is no incentive for them to stop the behavior. In essence, an Association needs to have a clear cut policy in place which sets forth the steps which will be taken when there is a violation of its governing documents or a failure to pay assessments. For the latter the Association should discuss the collection process with its collection attorney and create a system which initiates automatically when a payment is first in arrears rather six or twelve months down the road. For a document violation, the Association should work with its attorney to create a system by which demand letters can be generated and deadlines calendared for further action. For example, if an owner has violated a provision of the governing documents the first step could be a letter from the Association seeking compliance within a specific number of days and advising the matter will be turned over to counsel for failure to comply. Should the owner fail to comply the next step would be to have the attorney issue the demand. This demand would also be time sensitive and would advise of the Association’s position that it will pursue the matter through arbitration, mediation or other legal proceeding and that same may result in an exposure to fees and costs to the owner. The Association could opt for a second demand by the attorney as part of its policy to serve as a “final notice.” Once the deadlines in the demands have lapsed the next step should automatically come in to play. This next step would be non-binding arbitration, pre-suit mediation and/or litigation depending on the nature of the Association (condominium v. homeowners) and the violation. The theory behind such a clear cut procedure is not to promote wide-spread litigation but rather to deter the inappropriate behavior. Once the owners see that the Association is taking a hard line they will be less inclined to deviate from what is expected of them.

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5 Comments
  • Gerry
    August 11, 2009

    I think it is important to nopte that the statute requires the availability of a resident non Board appeal panel

  • jeff
    August 11, 2009

    I suggest you take a look at
    718.303(3).
    Under what situation would you use the process described there rather than going directly to the association attorney?

  • Marilyn Perez-Martinez
    Marilyn Perez-Martinez
    August 14, 2009

    I agree Jeff that fining is an option open to both a Condominium and Homeowner’s Association if the governing documents of the association so provide. If that is the case then when creating the policy a fine would be one of the steps before litigation. The Association just needs to make sure it has a properly created fining procedure and committee to avoid the invalidation of the fine.

  • Pat Campbell
    May 13, 2010

    We tried the mediation process for infractions of the documents and got agreements; however, the terms of both agreements were never met. What do we do now? In addition, the make-up of our Board has changed and one of the Board members is a person who went to mediation. How does that affect trying to get compliance.
    RESPONSE: A mediated agreement is a contract. Either party may enforce the agreement by use of the court system. Obviously, the members of the board will change from time to time and that impacts board decisions. If this new member of the board can convince the others, it may change the entire tone of the original dispute. Check with Association counsel about options to exclude this new board member from settlement or enforcement discussions.

  • Second request
    September 16, 2010

    Good afternoon. Thank you for your proactive public service. Last week, a rather lengthy query was directed to the author of this informative and thought-provoking article. Essentially, the query sought the most appropriate means by which a non-board member might be able to effectively and directly communicate with an association’s legal counsel. Is there a protocol prescribed within or supported by the statute? Your prompt response would be greatly appreciated.
    RESPONSE: An owner does not necessarily have any right to communicate with legal counsel hired by the Association. The Association’s Board of Directors hires the professionals and the attorney must take direction from the Board.