A homeowners’ association (HOA) is tasked with maintaining and enforcing the covenants, conditions, and restrictions (CC&Rs). When enforcing the rules, the HOA board must abide by specific rules and legal procedures. Unfortunately, many HOAs make some common mistakes, and an attorney can help you avoid them.
Many common covenant enforcement mistakes revolve around ordinary violations and the resulting penalties. When imposing fines, the HOA must follow certain procedures, such as providing notice and documentation. The HOA must also avoid selective enforcement. If the HOA lets a violation slide for one person, others may challenge the HOA’s authority when they try to enforce the rules on them. Many mistakes also revolve around hearings on violations.
Ask our Arizona covenant enforcement lawyers for a confidential case review by calling Halk, Oetinger, and Brown at (602) 759-9205.
Common Covenant Enforcement Mistakes by Arizona HOAs Involving Fines
Mistakes may vary depending on the specific violation, but the following are common enforcement mistakes made by HOAs in Arizona.
Fines Before Hearings
When assessing a fine for a violation, strict procedures must be followed. Before an HOA may formally impose a fine on a homeowner, the homeowner must be allowed a hearing on the violation.
If an HOA imposes a fine without allowing the homeowner a hearing or waiving their right to one, the fine may be challenged.
Selective Enforcement
Another common problem is selective enforcement. This often involves HOA board members enforcing covenants against some homeowners but not others.
Sometimes, HOA board members might choose not to enforce certain covenants because the violation is minor or the person who committed it is well-liked in the community. This is not good. If the HOA enforces some covenants but not others, any attempt to enforce the rules may be more easily challenged.
Enforcement should be consistent. Avoid making special exceptions for anyone.
Unreasonable Fine Schedules
Many mistakes related to fine schedules. Fine schedules should be disseminated to the community before they are enforced. The fines schedule must also be reasonable. It is a common mistake to set fines too high to deter violations. However, fines must be reasonable. Unreasonable fines may be challenged and possibly shot down.
Mistakes by HOAs Involving Enforcement Procedures
Other common mistakes HOAs make when it comes to covenant enforcement are the enforcement procedures. If specific rules and procedures are not followed, it may be very difficult for an HOA to enforce them meaningfully.
Lack of Written Notice
When a violation occurs, the homeowner in question must be properly notified. An HOA cannot assess fines or penalties for violations without first informing the homeowner that a violation has been observed. This is all about transparency and due process. Homeowners need to be notified so they can defend themselves.
No Opportunity to Cure
Under Arizona law, HOAs must give homeowners a reasonable amount of time to cure the violation. If the homeowner can successfully and completely cure the violation within this time, the HOA may not assess a fine or penalty.
Generally, the time to cure should be reasonable in comparison to the violation. A range of 10 to 30 days is somewhat common.
However, if a violation is incurable, the HOA does not have to provide a time to cure.
Hearings
When enforcing a violation, the HOA must provide the homeowner with a chance to have a hearing on the matter. While not every violation will lead to a hearing, homeowners must at least be allowed to ask for one. If no such opportunity is given, any fines or penalties assessed for the violation may be invalid and challenged.
How Can HOAs Avoid Common Covenant Enforcement Mistakes
HOAs must follow many legal rules and procedures, and avoiding mistakes is not always easy. If you are unsure, reach out for help before making any big decisions about covenant enforcement.
Speaking to an Attorney
Your HOA should have a lawyer to represent it in legal matters, and our Arizona covenant enforcement lawyers can advise on how to avoid covenant enforcement mistakes. In fact, it may be wise to ask your HOA’s lawyer to draft the necessary paperwork, including notices and fine schedules, so that you know everything is correct.
Review and Update Covenants
Before attempting to enforce covenants, you should review your HOA’s CC&Rs first. If anything seems incorrect or outdated, talk to an attorney. It may be time to update or create new rules to address modern problems.
Remember, as state laws change regarding HOAs, you may need to update your HOA’s bylaws and CC&Rs to be compliant with the state.
Taking Reasonable Legal Action
If a violation occurs and legal action is required to ensure compliance, talk to your HOA’s attorney about what kind of legal action is necessary. Avoid overreacting and taking drastic measures to resolve minor violations. If a lawsuit is not necessary, do not file one.
Determine what kind of legal action is effective but also reasonable under the circumstances.
FAQs About HOA Covenant Enforcement Mistakes in Arizona
How Do HOAs Often Make Mistakes When Assessing Fines in Arizona?
Common mistakes HOAs make when enforcing covenants include improper notice, insufficient documentation, no opportunity to cure, and selective enforcement of the rules, among others.
How Should HOAs Take Legal Action to Best Avoid Mistakes?
The best way to take legal action and avoid mistakes is to consult an experienced attorney. Many HOA boards are made up of people with no legal background or training, so a lawyer may be crucial to keeping the HOA on track.
What Should an HOA Do to Avoid Mistakes or Legal Errors?
To avoid mistakes, you should review all necessary rules and legal procedures surrounding covenant enforcement with your HOA’s attorney. Routine violations, such as leaving out trash cans or failing to cut the lawn, can often be handled quickly, but an attorney should review more serious violations.
What Should an HOA Do if a Legal Mistake is Made While Enforcing Covenants?
If a legal error occurs when an HOA tries to enforce covenants, go to your HOA’s attorney for help. It is possible that the error can be corrected without any further complications or consequences. Alternatively, some mistakes cannot be corrected, and you may need your lawyer’s help.
Speak to Our Arizona Covenant Enforcement Lawyers About Your Situation
Ask our Arizona covenant enforcement lawyers for a confidential case review by calling Halk, Oetinger, and Brown at (602) 759-9205.
