QBefore I bought my condominium unit, I was required to review the condominium documents and sign a form saying I agreed to abide by them. It was one of the reasons I bought in this community; I felt that the documents would be enforced.
Unfortunately, this has not happened. The response to complaints of violations of the rules and regulations is that the board members claim they have no way to enforce things. They may send out letters requesting that the violations cease, but if the letter goes unheeded, the board states there is nothing more that can be done.
Could this lack of action be cause for a lawsuit? If they cannot enforce some of the rules, how can they require payment of condominium fees for management of the community? We have had three board presidents, so I do not believe it is just lack of interest in the community. I wonder if it is misguidance from the legal counsel for the condominium or perhaps just poor advice from the management company. What do you recommend?
AWhile the lawyer and the management company may be giving poor advice, these professionals can only make recommendations to the board. Ultimately, the buck stops at the boardroom table.
Most members of community association boards of directors are hardworking, diligent and sincere. However, I have also encountered boards that just do not care about the proper management of their association. A unit owner may become board president because of an ego trip, or because he has nothing better to do.
What are your alternatives?
First, why don't you get active and try to be elected to the board so that you can take the appropriate steps to enforce the rules?
If there are others in your community who share your concerns, you should be able to mount a political campaign, throw the current rascals out of office, and get a new slate elected that will be responsive to the needs of your community.
Your second alternative is to sue the board for failing to enforce the condominium documents.
It is my experience that every community association legal document contains language authorizing its board to take action against erring unit owners. Indeed, most documents permit the association to recoup legal fees in the event it is successful in any litigation against the violating owner.
If the board is not fulfilling its responsibilities, and is not enforcing the community documents, it would be my opinion that the board members are breaching their fiduciary duties to those who elected them. You may want to consider calling a special meeting of the association, through the procedures spelled out in your bylaws, to alert the unit owners to these problems. Because apathy is so rampant in community associations, many of the unit owners may not even know about these problems.
Once they understand the problems, and if enough owners become concerned to try to take action, you can either file suit against the board, or have new people run for office to serve as the new board members.
Keep in mind, however, that many state courts will adhere to a concept known as the "business judgment rule." This rule, which does not apply in the District, means that a court will not second guess what a board of directors does, even if the board has made a mistake, as long as there are no egregious problems, such as conflicts of interest or theft of association funds. Many courts have taken the position that service on a community association board of directors is voluntary and unpaid, and thus that board should be given sufficient leeway to govern itself -- without having to be concerned about constant oversight by the judicial system.
I do not recommend that unit owners stop paying their association fees just because they perceive a problem. Each owner has an obligation to pay his share of the community expenses. By not making the monthly or quarterly payment, you are just hurting yourself.
But that does not excuse the board for not taking appropriate action. The case law throughout the United States is quite clear that a board of directors has to be uniform in its enforcement activities. They cannot be selective, nor can they be arbitrary. In other words, if unit owner X and unit owner Y are involved in the same violations, it would be a valid defense by unit owner X if the board went after only him, and did not go after all of the violators.
Ultimately, the courts have the authority to force the board to enforce the rules and regulations of your association. However, litigation is time-consuming and expensive, so it should only be used as a last resort.
I would prefer to use the good old-fashioned political process: Try to get on the board yourself.
Because of the problems with litigation, I have consistently advised unhappy community association owners that they really have only three choices:
* Get elected to the board and try to make changes.
* Sell and move to a single-family house in a neighborhood without a community association.
* Accept the situation and get over it.
Benny L. Kass is a Washington lawyer. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed stamped envelope to Benny L. Kass, Suite 1100, 1050 17th St. NW, Washington, D.C. 20036. Readers may also send questions to him at that address.