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Living in a community association carries with it certain responsibilities - - - such as abiding by the founding legal documents, paying assessments, and following the rules and regulations promulgated by the declaration, bylaws and resolutions of the board of directors. Conversely, it is the association's job to establish an enforcement process that is expedient and fair to each individual resident.
Successful community associations have a written policy resolution establishing procedures for conducting hearings by an authorized committee of the board of directors and a subsequent appeals process to the actual board when violations of Covenants, Conditions and Restrictions (as well as other rules of conduct of that association) occur.
Creating a Policy Resolution Procedure
A successful Policy Resolution should include the following:
- A statement outlining the authority of the Board of Directors to establish a policy.
- A statement which specifically defines the purpose of the resolution.
- Usage of words such as reasonable, prompt, efficient and fair throughout the document which can be essential for any subsequent legal proceedings.
- Inclusion of a section defining terms such as types of infractions (minor or major), applicable rules, and who may register a complaint.
- The form for registering a complaint: written or verbal
- A definition of allowable actions (and by whom) before a formal hearing may be requested.
- Establishment of criteria for the hearing entity, which includes determining what rule has been violated, whether or not the initial complaint can be substantiated, or acknowledgment by the accused that a violation was committed and statement that it will not be repeated. Additionally, the process must insure that the accused has been properly notified in writing to refrain, censure or cease and desist to avoid further action.
- Establishment of a process of evaluation of a complaint before issuing a formal Notice of Hearing to the alleged violator.
- Notice of Hearing containing the authority to hold the hearing; date, time and place of the hearing; whom may be present at the hearing (including legal counsel for the defendant); and assurance that any Association records needed by the accused will be provided prior to the hearing. The hearing notice should also provide sufficient advanced notice for the accused to be able to reasonably attend the hearing.
- Assurance that the Hearing will be held in closed session with only the accused, the complainant, witnesses and the hearing committee in attendance.
- Assurance that the oral testimony may be taped but not the deliberations of the hearing committee.
- Provision for decisions by the hearing body to be by majority vote and become a permanent record of the Association.
- Provision for the right of an appeal to the Board of Directors within a certain time period of the hearing body's decision (usually 10-30 days).
- Assurance that if the results of the proceeding are to be publicized to the community, thereby educating the owners on the importance of certain rules, the names and address of the persons involved are not disclosed.
Prior to adopting such a policy resolution, the board of directors should provide written notice to the owners, establish a town meeting to hear owners' concerns, and have the proposed resolution reviewed by legal counsel for compliance with the founding documents, community ordinances, and state/federal law.
Having a clear and consistent policy for resolving disputes will insure that your association maintains a positive image with its residents and throughout the community at large.
