Why Is It Necessary to Enforce Our Restrictions?

WHY IS IT NECESSARY
TO ENFORCE OUR RESTRICTIONS?
By Robert M. Meisner

In over thirty-three (33) years of representing community associations, I have been asked, on hundreds of occasions, why it is necessary for the association to vigorously pursue the enforcement of Bylaw Restrictions. The answer is not that difficult given the obligations of the Board of Directors under the Condominium Documents and the problems which I observed in the operation and governance of community associations. First and foremost, the Condominium Documents require that the Board of Directors enforce the Deed Restrictions except in those instances where it believes it is not appropriate or necessary, i.e., by way of example, a dispute among two co-owners which does not involve the rest of the condominium project and will not have an adverse effect on same.

Simply stated, the restrictions in the Condominium Documents are to be observed by all co-owners and the Board of Directors is given primary responsibility to ensure that these restrictions are followed. The Board has a plethora of remedies in the Condominium Documents and/or the Condominium Act to ensure enforcement. If the Board does not take an active role in doing so, the association will then be left with the possibility that its Deed Restrictions are not enforceable at a later time. There are various defenses that can be asserted against the association, by a co-owner, if the Association has not been consistent, diligent, uniform, and aggressive in enforcing the Deed Restrictions.

Claims by co-owners that the Board is treating them unfairly by discriminating against them, as opposed to other co-owners, is a frequent excuse and defense asserted by co-owners. Also, another frequent claim is that the association has sat on it’s hands, so to speak, before enforcing the documents and should be legally precluded, therefore, from enforcing the documents at the time the Board finally gets around to doing so. The more the Board procrastinates, the more likely the association will be faced with a dilemma in terms of enforcing the Condominium Documents. Indeed, in some instances, the Association should take immediate action to stop an abuse by a co-owner particularly where injunctive relief is appropriate, by way of example, before the unapproved addition to the common elements is constructed. Or, if there is a claim of racial or other prohibited type of discrimination, the Board should get legal advice and get involved as soon as possible.

The Board should frequently consult with its legal advisor as to the nature of its Bylaw enforcement procedures and should have a written Bylaw enforcement procedure in effect so that its managing agent and the Board of Directors, both now and in the future, will know what the proper policy should be to enforce the Condominium Documents. If this is done, our experience in successfully representing hundreds of associations over the years in bylaw enforcement matters has proven that the Bylaw Enforcement Policy can be effective, manageable and in the best interest of all members of the association.