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The Cooper Company: Real World Enforcement Discussion

The Cooper Company: Real World Enforcement Discussion. Presented by: Susana Cendejas, Esq. Angius & Terry LLP. IS THERE A PROBLEM IN YOUR COMMUNITY?. SPEEDING. EXCESSIVE NOISE. SECURITY. COMMON FACILITIES MAINTENANCE. UNRULY TENANTS. CHILDREN. DOES THE BOARD HAVE A DUTY TO ACT?.

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The Cooper Company: Real World Enforcement Discussion

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  1. The Cooper Company:Real World EnforcementDiscussion Presented by: Susana Cendejas, Esq. Angius & Terry LLP

  2. IS THERE A PROBLEM IN YOUR COMMUNITY?

  3. SPEEDING

  4. EXCESSIVE NOISE

  5. SECURITY

  6. COMMON FACILITIES MAINTENANCE

  7. UNRULY TENANTS

  8. CHILDREN

  9. DOES THE BOARD HAVE A DUTY TO ACT? • Is there a provision in the CC&Rs or Rules which has been violated? • Is there a threat to health and safety?

  10. Is it a Neighbor to Neighbor Dispute? • First, determine whether there is a direct violation of the association’s governing documents, or if the issue affects the association as a whole. • If so, than the Board has a duty to enforce the governing documents, or to protect the interests of the owners as a whole. However, the law does not require the Board to go as far as suing a homeowner in order to enforce the governing documents. (See Beehan v. Lido Isle Community Association (1977) 70 Cal.App.3d 606). • Review the CC&Rs and see if there is a provision that requires owners to submit their disputes to the Board, or to some other form of alternative dispute resolution.

  11. IS THERE A NEED TO ENACT A RULE? • Is the rule consistent with the CC&R’s? • Is the rule reasonable and non-discriminatory? • Is the rule to be enforced uniformly?

  12. THE OVERRIDING GOAL: TO COMPEL RULE COMPLIANCE NOT PUNISHMENT NOT COLLECTING FINES

  13. NOW WHAT?

  14. NOTICE OF VIOLATION TO HOMEOWNER • If you are not a witness to the violation • Get a written statement from complaining party • Telephone Call • Letter • Specific description of the nature of the violation • Deadline to cure the violation • Include copy of rule violated • Advise that continued fine and/or violation will result in hearing before Board • Include schedule of fines

  15. NOTICE OF HEARING • Provide 10 Days’ Written Notice of Hearing • Advise that Hearing Will be Held in Executive Session • Advise that Board will issue a written decision pursuant to the governing documents. • Advise that Fine may be Imposed • suspend voting rights per CCR’s • suspend common facility use per CC&R’s

  16. THE HEARING • Conduct in Executive Session • With or without counsel • Provide ground rules for hearing • Member’s opportunity to be heard and present position • Experienced facilitator present

  17. at the hearing - anticipate going to ADR don’t poison the well encourage communication avoid dictating if at all possible set the stage for mediation

  18. THE DECISION • Board should deliberate in executive session • Decision should address each violation for which notice was given - but no more • Decision should address continued violations • Impose/suspend fine • Board makes written decision after hearing

  19. THE FINE HAS BEEN LEVIED AND COMPLIANCE HAS BEEN ORDERED. NOW WHAT?

  20. ADR Strategic considerations • select mediation • promotes dialogue • arbitration discourages dialogue • designate a mediation service in your notice • record decision in writing to promote compliance

  21. SHOULD THE BOARD INITIATE LEGAL PROCEEDINGS TO COMPEL COMPLIANCE AND/OR COLLECT FINES?

  22. PRACTICAL STRATEGIES FOR THE GOOD • Communicate in a non-confrontational way (Communication may be the issue) • Caution: Beware of selective enforcement • Consider suspending fines • The goal is compliance, not punishment • A suspended fine can be reimposed if conditions not met • Don’t poison the well for mediation

  23. PRACTICAL STRATEGIES FOR THE BAD • Document, Document, Document! • Get any agreements in writing • Pattern of escalating enforcement • Don’t allow personalities to affect your judgment • Don’t be afraid to call the police • Make sure any threats are reflected in the police report • Develop a good relationship with police

  24. PRACTICAL STRATEGIES FOR THE UGLY • Human Services • Health Department • County Building Code Enforcement • Police Department • Danger to Self • Danger to Others • Get the officer’s name and a copy of report • Community Information • Find out who owns the property

  25. Real World Examples • Parking • Street parking v. garage parking • Can the Board require residents to park in their garage or driveway before parking in common area spots? • Should common area spots be assigned?

  26. Real World Examples • Pets • What if residents are using the tennis court as a dog run?

  27. Real World Examples • Pets • What should the Board do when a barking dog is disturbing one resident and the residents are not able to reach a solution?

  28. Real World Examples • Use of Common Facilities • What if residents are playing loud music at the pool?

  29. Real World Examples • What happens when an Owner makes architectural modifications without permission? And then refuses to remove it or submit an application?

  30. Real World Examples • What should the Board do about political signs?

  31. Real World Examples • What should the Board do when a homeowner refuses to properly maintain their home or front yard?

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