Since our enforcement hearing presentation at WSCAI’s Made for Managers Day a couple of weeks ago, we have been getting a lot of feedback on the variety of procedures employed for community association enforcement hearings, generally with the question “is it okay to do it this way?”  First, a big thanks to all of you who attended our presentation (and MFMD 2017 in general)!  Second, the primary takeaway from our presentation and, for those of you who did not attend, for enforcement hearings in general is twofold:  1) Follow your governing documents; and 2) be reasonable.

If you are already holding an enforcement hearing, then the owner at issue has demonstrated a willingness to put time and effort into defending their actions.  While this does not necessarily mean that he or she will take further legal action against the Association, if the Association finds that the violation was committed it is a small indicator that litigation may be likely.

Thus, the best approach is to conduct the hearing as if a third-party neutral (the judge) is standing over your shoulder.  As Chief Justice Earl Warren wrote, “The police must obey the law while enforcing the law.”  A key issue to the court is that those enforcing the governing documents are obeying the governing documents themselves.

Perhaps even overriding this tenet is the concept that whatever the Association did as part of the overall enforcement action must be reasonable.  The courts do not want these hearings to be overly formulaic and strict, what they want is for the owner to have had a legitimate “opportunity to be heard,” which is the language used in the Condo and HOA Acts and almost universally repeated in governing documents.  Thus, communities must balance the owner’s right with the competing interests of efficiency and control.  Determining the balance is not always easy, but if the Board or Hearing Committee focuses its guiding principles on following its documents and being reasonable, the actions taken at the enforcement hearing will most likely be upheld by the courts.

If you have any additional questions please do not hesitate to contact a member of the Barker Martin team.