Condo Media - September 2023 - 35

1
DON'T HAVE
WRITTEN RULES
Without written rules and
regulations regarding what owners
can and cannot do in common areas,
the board can just wing it. If the
board doesn't like what Mr. Smith
is doing, let him know with a fine
letter! Sure, Mr. Smith didn't know
what he was doing was a violation
given the lack of written rules, but
he knows now.
FACT CHECK:
If whatever
Mr. Smith did
is not prohibited by the governing
documents, the board has no
authority to fine him. Thus, it is
critical to have written rules and
regulations that spell out what
owners can and cannot do. Your
condo documents almost certainly
say nothing about something specific
such as performing an oil change in
the common parking lot. But if the
board decides they do not want
automotive work being done in the
common lot, which is reasonable
given the potential damage to the
asphalt among other valid reasons,
they can prohibit the practice via a
written rule. Likewise, the board can
limit the number of cars that a unit
can park or require all cars parked in
a common area to be registered and
operable. Once committed to a rule,
the board is empowered to issue
violation notices to owners and
also fines, if necessary.
3
2
ENFORCE YOUR RULES
INCONSISTENTLY
Perhaps Mr. Jones is leaving
his garbage cans on the street for days
on end in violation of a rule establishing
when the cans must be stored-away
and when they can be left out. But
Mr. Jones is friends with several board
members, so they let him violate the
rule each and every week. Why make
a good guy like Mr. Jones angry, right?
He'll comply eventually, the board
members figure. Mr. Roberts also
leaves his garbage cans out past the
deadline and sometimes doesn't store
them in his garage once removed from
the curb. But, Mr. Roberts has long
been a thorn in the side of the board,
so the board decides to fine him for the
violation. At least the board notified
one offender.
FACT CHECK:
Inconsistent
enforcement is
a surefire way for a board to be
ineffectual in its rule enforcement.
As soon as Roberts gets a violation
notice, he's going to call management
and say, " I'm not paying this fine
because Jones is doing the same thing,
and I know he didn't get a notice. "
And as your attorney, I would give you
the advice that Roberts makes a good
point. If you end up in court, a judge is
not going to want to hear that some
violators got fined and others did not.
I can promise you that it will not go over
well. The board must enforce the rules
for all violators.
TARGET OWNERS YOU DISLIKE
Mr. Roberts continues to call into question the board's integrity and is
running for a seat in the next election hoping to make some big changes.
He hasn't committed a violation lately, so the board decides to create a new rule
strategically designed to put Roberts in violation. That will teach him a lesson!
FACT CHECK:
Of course, this is just an awful idea and should never be done.
Ever. Rules should exist because they address a need or a
legitimate concern. For example, if there are never open visitor spaces because
owners are utilizing them, the board should more steadfastly enforce the
existing prohibition on owners parking in the common area. If the board is
concerned with the curb appeal of units, the board should develop rules for what
owners can and cannot place in the garden areas adjacent to their units. What a
board should not do is create a rule targeted to a specific owner as an act of
retaliation or vengeance. The board should use the creation of rules and their
enforcement to make their condo a better place, not a worse one.
4
LET IT GO
Why create an issue
when you don't have to?
If owners are violating the rules,
sometimes it's best to just look
the other way. Just like Elsa in the
movie " Frozen, " let it go. Think of
all the time saved in not issuing
violation letters and dealing with
the fallout. Or as an alternative,
just enforce some of the rules,
but not all of them.
FACT CHECK:
The first defense
an owner will
have to a violation notice is that their
neighbor is violating another rule
but was not given a violation notice.
Yes, the owner you sent a notice to
committed a violation and perhaps
that is all that should matter, but the
failure to enforce other rules will
open the board up to allegations of
targeting or harassment even if it's
not remotely true.
When sending a violation notice,
I always like to consider how the
facts would appear to a judge.
What would a judge make of the
situation? Did one party conduct
itself less than admirably? If you
have a board that enforces rules A
through L but not M through Z, a
judge could find that the selective
enforcement is evidence of favoritism
or worse. A board loses the
moral high ground by not uniformly
enforcing all the rules. This doesn't
mean you have to fine the owners
into oblivion, but it means that
notices should be sent (even just by
email) to let the owner know what
the rule is and how it was violated.
Sometimes a violation notice is all
it takes to get an owner back into
compliance. Hopefully the issue
was just a misunderstanding. Fines
should be utilized when an owner
fails to exercise common sense and
refuses to stop the violation even
after receiving notice.
n DEAN T. LENNON, ESQ. IS A
PARTNER WITH THE LAW FIRM
MARCUS, ERRICO, EMMER &
BROOKS, P.C.
September 2023 CONDOMEDIA 35
Condo Media - September 2023

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