Notice, and the Right to Object
A letter arrives saying that a fine has been imposed and a hearing was held. In most jurisdictions an association must give notice and an opportunity to be heard before it acts, and the procedural requirements are among the most commonly ignored parts of these documents.
The rule in short
Community associations generally must follow their governing documents and applicable statutes before enforcing rules: notice of the alleged violation, an opportunity to be heard, a decision by the proper body, and notice of the outcome. Procedural failures are common and are frequently a complete answer to an enforcement action. Rules themselves must also be validly adopted and consistently applied, and selective enforcement is a recognized defense.
Disputes with community associations follow a pattern. A letter arrives, the resident is upset, an argument follows about whether the rule is fair, and nobody looks at whether the association actually followed its own procedure. That is usually where the answer is.
What the procedure generally requires
Notice of the alleged violation. Describing what is said to have happened in enough detail for the resident to know what they are answering rather than in general terms.
Time to respond. A defined period before any decision, which governing documents and statutes both commonly specify and which boards frequently compress.
A hearing. Before the body with authority to decide, which the resident may attend, and at which they may present their side of the matter.
A decision by the right body. Since a fine imposed by a manager, a committee or an individual board member without authority is frequently invalid on that ground alone.
And written notice of the outcome. With reasons and with any right of appeal stated, which is the document a resident needs in order to do anything further.
Where associations go wrong
No hearing offered. Which is the single most common failure, since boards frequently treat a violation letter as the whole of the process.
Insufficient notice. Either too short a period, or a description too vague to identify what conduct is complained about.
The wrong body deciding. A manager or a committee acting where the governing documents reserve the decision to the board itself.
Rules not validly adopted. Where a restriction was never passed in the manner the documents require, which makes it unenforceable however long it has been printed in a handbook.
And inconsistent enforcement. Which undermines the rule generally and is examined further below as a substantive answer rather than a procedural one.
| Step | Commonly required | Commonly done |
|---|---|---|
| Written notice of the alleged breach | Yes | Yes |
| Adequate time to respond | Yes | Sometimes |
| Hearing before the deciding body | Yes | Frequently not |
| Decision by the authorized body | Yes | Sometimes not |
| Written notice of the outcome | Yes | Sometimes |
Substantive answers to an enforcement action
The rule was not validly adopted. Requiring the governing documents to be read against what was actually done when the rule was introduced.
The rule exceeds the association's authority. Since a board may only regulate what the declaration and statutes permit it to regulate.
Selective enforcement. Where comparable conduct elsewhere has been tolerated, which is evidenced by observation and by the association's own records.
The conduct is protected. Particularly where a disability-related need is involved, on the position in modifications a landlord must allow.
And the alleged breach did not occur. Which is worth stating plainly, since these disputes frequently proceed for months without anybody addressing the facts.
Residents spend their energy arguing that a rule is unreasonable, which is difficult and rarely succeeds. The more productive question is whether the association followed the process its own documents require: notice, time, a hearing before the right body, and a written decision. Boards staffed by volunteers skip at least one of those in a large share of enforcement actions, and pointing it out politely resolves a great many disputes in a single letter.
How to respond to a letter
Reply in writing, promptly. Requesting the hearing the documents provide for and asking for the specific provision said to have been breached.
Ask for the records. Minutes, the adoption history of the rule, and correspondence about comparable matters, using the statutory inspection route.
Photograph the development. Since evidence of comparable conduct elsewhere is what supports a selective enforcement answer and it is gatherable in an afternoon.
Keep the tone measured. Because these disputes are decided by neighbors and an aggressive response makes an ordinary disagreement permanent.
And do not simply ignore it. Since unpaid fines can accumulate, attract charges, and in some jurisdictions ultimately support a lien on the property.
The wider context worth keeping in view
Boards are volunteers. Neighbors with strong views and no professional training, which explains most procedural failures better than any theory of malice does.
Fines can escalate. Accumulating with charges and, in some places, becoming secured against the property, which is why ignoring letters is a poor strategy.
Other obligations still apply. Including on accommodations and on the refusals in refusals that are unlawful.
Age restrictions have their own rules. Set out in communities that may exclude children, and enforceable only while the conditions hold.
And most disputes settle. Once somebody points out the procedural gap, which is why the first written response matters more than anything that follows it.
Disputes with associations feel personal because they are conducted between neighbors, and that is exactly why the procedural route is the better one. It resolves matters without anybody having to be told they were unreasonable.
The requirements are modest and they are frequently not met. Notice, time, a hearing before the right body and a written decision is not a demanding sequence, and volunteer boards miss part of it regularly.
The first written response is where these disputes are decided. A letter requesting the hearing and asking which provision is relied on changes the position immediately and costs nothing.
Selective enforcement is the substantive answer most often available and least often used, and the evidence for it is generally visible from a walk around the development.
Record inspection rights matter here more than residents realize, because the association holds all the information about what it has done in comparable cases and will not volunteer it.
Ignoring letters is the response that reliably makes things worse, since fines accumulate, charges attach and in some places the amount can become secured against the home itself.
Tone is worth attending to for entirely practical reasons. These are neighbors, the dispute will end, and the people involved will still be sharing a car park afterward.
And where a disability-related need underlies the conduct complained of, the analysis changes entirely, because the association's obligations in that direction are considerably stronger than its enforcement powers.
One further observation about how these disputes usually resolve. Boards do not enjoy them either. The people writing the letters are neighbors who volunteered for an unpaid role, are frequently acting on a complaint from somebody else, and would generally prefer the matter to go away.
A response that gives them a way to do so without anybody losing face resolves a surprising proportion of these situations. Asking for the hearing the documents require, and noting politely that the process appears not to have been followed, offers exactly that.
The disputes that harden are almost always the ones where somebody was told they were being unreasonable. The ones that end quietly are the ones where a procedural point was made without any accusation attached to it.
Points to carry away
- Notice and an opportunity to be heard are generally required.
- Procedural failures are common and are frequently decisive.
- Rules must have been validly adopted to be enforceable.
- Selective enforcement is a recognized answer.
- Records of correspondence decide most of these disputes.
Questions readers ask
What does an opportunity to be heard involve?
Notice of what is alleged, in enough detail to know what is being complained about; sufficient time to prepare; a hearing before the body with authority to decide, at which the resident may attend and respond; and written notice of the decision. Statutes in many jurisdictions set out minimum requirements, and governing documents frequently add to them. What is not sufficient is a board deciding informally and sending a fine, which is nonetheless what happens in a substantial share of these cases.
What is selective enforcement?
Enforcing a rule against one resident while tolerating the same conduct by others. It is a recognized answer to an enforcement action in many jurisdictions, on the basis that an association cannot revive a rule it has allowed to lapse, or apply it to somebody it dislikes while ignoring identical breaches elsewhere. Establishing it requires evidence — photographs, correspondence, minutes — showing that the association knew about comparable conduct and did nothing. That evidence is usually gatherable by any resident who walks around the development.
Can a resident inspect the association's records?
In most jurisdictions, yes, within defined limits and on a defined procedure. Minutes, financial records, correspondence about enforcement and the governing documents themselves are commonly inspectable, and a written request under the applicable statute is the way to obtain them. This matters because almost every dispute of this kind turns on what the association actually did and when, and the association is the only body holding that information.
Sources
- Legal Information Institute — Homeowners Associationlaw.cornell.edu
- Legal Information Institute — Due Processlaw.cornell.edu
- Legal Information Institute — Covenantlaw.cornell.edu
- Legal Information Institute — Estoppellaw.cornell.edu
- Legal Information Institute — Noticelaw.cornell.edu
- Legal Information Institute — Waiverlaw.cornell.edu
Silverline Legal Notes is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
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