Can we just enforce the rules we like?

Harmony Taylor

Most board members don’t relish the idea of fining their friends and neighbors for minor infractions of their community’s restrictive covenants. Boards are typically willing to issue fines and citations when an owner has piles of garbage in their front yard, windows and siding falling off the exterior, or nipping dogs running around common areas off leash. But what about the situation with the owner who occasionally has to bring a company work van home overnight and park it in the driveway- and the Declaration of Covenants says no commercial vehicles parked in driveways? Or the environmentally friendly owner who likes to use a clothes line, but cannot do so on her lot without violating the restriction on clothes lines visible from the street? Can the Board choose to ignore these “minor” violations? In most circumstances, the answer is no. The Association, acting through its Board of Directors, is charged with administering the governing documents for a community in their entirety.  There is no option to pick and choose from the rules the Board or community likes. (An exception exists for rules or restrictions which are illegal or void as against public policy- for example, restrictions on use of lots by members of certain racial or ethnic groups.)  Often restrictions will seem harmless in isolation, but once you consider the broader reasons behind them, their enforcement may make sense. That one van in the driveway can easily turn into ten.

If an Association has simply outgrown its rules, and no longer wishes to enforce them, amendment of the governing documents may be the answer. The Association may be able to remove or revise the objectionable restriction. Of course, any amendment must be generally reasonable and consistent with the original development scheme and must be approved by the necessary vote of the membership. If the community supports the change, then the Board can start the amendment process – but is still charged with enforcement until this is done. If the community does not support a change, the Board will need to enforce the rules as written- even if they would rather not.  However the Board opts to proceed, simply ignoring the rule is not an option- even if that will make those nice board members the bad guys.

As always, please feel free to contact any of our community association attorneys in Charlotte or Greensboro to discuss any questions you may have.