The other day, I was in my favorite department store doing some holiday shopping. While paying for my gifts, I was standing next to a large man wearing a red suit. I attempted to strike up a conversation, however, all he said was “Tis the season to be jolly” and “Ho Ho Ho.”
As I left the store, I thought if “Tis the season to be jolly,” why am I receiving a number of phone calls from upset Board members requesting information regarding enforcement of rules and regulations? Boards encounter a variety of rules enforcement issues, but there are ways to make the enforcement process proceed more smoothly.
The first thing I advise Board members regarding rules enforcement is that the association must have clear and concise rules and regulations.
If you live in a condominium association, the Board, by law, has the right to adopt rules and regulations without the consent of the owners. If you live in a non-condominium association, your association’s Declaration will prescribe the necessary procedure for adopting rules and regulations. Generally, in these associations, the Board may also do so without the consent of the homeowners. However, make certain that this is the case prior to adopting the rules. Rules which are adopted improperly are unenforceable.
Once the Board has adopted rules and regulations, the next step is to enforce them. Prior to doing so, the Board should set up the following procedures:
- Any owner witnessing a violation should fill out a violation form and submit it to the Board of Directors. The Board should have a specific form which owners can obtain and submit substantiating the violation.
- Once the Board receives the notice of violation, they should send a form to the unit owner accused of the violation stating that there will be a hearing to further investigate this matter. The owner should be advised that the hearing will proceed in the owner’s absence. Again, the Board should use the same form in each instance.
- At this hearing, the Board should listen to the complaining witness and the accused. After doing so, the Board should convene in executive session to determine what, if any, action to take to enforce compliance.
- After the Board convenes, they should exit executive session and vote on the remedy. After a vote is taken, a notice of determination should be sent to the accused stating the outcome. This should also be a standard form.
It is extremely important that a Board follow the above procedures prior to assessing any fine. Not only does Illinois law require that an owner receive an opportunity to be heard prior to the Board assessing a fine, but this approach can help insulate Boards from charges that they acted in a discriminatory manner when enforcing their rules and regulations. Although an association cannot prevent receipt of a discrimination complaint, it can take steps to minimize its exposure to such actions. By addressing each rules violation in the same manner and using the same form and procedure for each violation, the Board will aid the association in defending such a claim.
Obviously, the best rules enforcement is when there are no violations. During this holiday season and in the New Year, be courteous to your neighbors and remember that rules and regulations are for the benefit of all owners, as they help keep the property a desirable place to live.
Since 1983, KSN has been a legal resource for condominium, homeowner, and townhome associations. Additionally, we represent clients in real estate transactions, collections, landlord/tenant issues, and property tax appeals. We have four office locations, serving hundreds of clients and thousands of communities throughout Illinois, Indiana, and Wisconsin. Our attorneys are also licensed in Arizona, Florida, and Missouri.
If our law firm can be of assistance, please call 855-537-0500 or visit www.ksnlaw.com.