The enforcement of covenants, conditions, and restrictions (“CC&R’s”) is among the most criticized of the duties performed by the Board of Directors of community associations, but is also the most important responsibility. CC&R’s govern many activities in a community including house designs, parking regulations, maintenance and repair of the common areas, and collection of assessments. Sensational “Gotcha” type news stories highlight enforcement practices of some associations, which contribute to a false perception that associations in general lack common sense. However, studies repeatedly show that the overwhelming majority of people  living in neighborhoods governed by HOAs believe that the rules in their communities benefit them.

In a 2009 poll, seventy percent of owners said rules in their community protected and enhanced property values. Twenty-seven percent said that the rules made no difference, and only two percent said they harmed property values. Rules give communities standards for appearance, and address issues like noise and pets that can cause disputes between owners. By enforcing rules fairly, an association can make a community a better place to live, which translates into higher property values.

When owners buy property in a community with an association, they accept the responsibilities and restrictions included in the declaration and bylaws of the association. The Virginia Property Owner’s Association Act provides that “Every lot owner, and all those entitled to occupy a lot shall comply with all lawful provisions of this chapter and all provisions of the declaration.” The Virginia Condominium Act provides that “Every unit owner, and all those entitled to occupy a unit shall comply with all lawful provisions of this chapter and all provisions of the condominium instruments.” When owners choose not to comply with the declaration for their community, they not only violate this provision, they also harm their neighbors by increasing enforcement costs for the association and sometimes create a negative effect on property values.

Association boards and managers have the difficult task of enforcing rules in accordance with their legal duty to act in the best interest of the association, while still being fair and reasonable. Associations that are lax in enforcing even seemingly minor rule violations could lose the ability to enforce rules later on, on the grounds that they waived the right to enforce them. Our experience is that the overwhelming majority of association managers and board members take their responsibilities seriously, and genuinely try to act in the best interest of the community.

In even small communities, it’s unlikely that every owner will agree with every enforcement decision made by the association. Even unpopular enforcement decisions may still be in the best interest of the community. The volunteer members of your HOA Board may be taken for granted and may be criticized, but they have a fiduciary duty to ensure fair and comprehensive enforcement of the rules by which all the homeowners agreed to abide.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia

Susan Tarley

Susan chairs the firm's common interest community (HOAs and Condos) practice area. She was admitted into the College of Community Association Attorneys (“CCAL”). Susan is one of fewer than 150 attorneys nationwide to be admitted to CCAL, for distinguishing herself through contributions to the evolution or practice of community association law.

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