HOAs Can Achieve Compliance With Rules Through an Effective “Suspension of Privileges” Policy

It is commonplace for homeowners associations to experience problems relating to the payment of assessments and/or rules violations by members of the association and their family and guests. The most common methodology used for the enforcement of rules has traditionally been the imposition of monetary fines through the enforcement of a “fine policy” that has been properly adopted and published by the association. Another effective method of achieving compliance with the governing documents for a homeowners’ association is the temporary suspension of a member’s privileges. A suspension of a member’s privileges will also extend to co-owners and occupants, as well as tenants of the owner.

So long as the state laws governing an association do not prohibit the suspension of privileges for assessment delinquencies or the violation of other governing documents, an association’s authority for suspending privileges must be included in the association’s governing documents. In addition, before a member’s rights and privileges can be suspended or a fine is imposed, the member must be afforded appropriate “due process,” which requires proper advance notice and an opportunity to be heard concerning an alleged violation.

The Association Must Have a Proper Disciplinary Policy

To effectively enforce its rules and policies, a homeowners association must have a properly adopted and published disciplinary policy. Such a policy should include the imposition of fines for violations of the association’s governing documents, and the suspension of members’ privileges for uncorrected violations of the association’s governing documents.

“Due Process” Requirements

State laws governing homeowners associations and an association’s governing documents contain provisions that mandate compliance with certain procedural requirements before a disciplinary measure (whether a fine or suspension of privileges) can be imposed on an association member. The procedural requirements typically have three components: (i) proper notice of a hearing where the association’s board of directors will consider the imposition of a fine or the suspension of privileges; and (ii) a hearing concerning the matter which the member has a right to attend; and (iii) written notification of the board’s decision following the hearing.

Permissible Suspensions

Commonly employed suspensions of privileges within homeowners associations include the following if properly provided for in the association’s governing documents:

● Ineligibility to run for or removal from the association’s board of directors;

● Suspension of use of association recreational facilities such as clubhouse, pool, gym and tennis courts (not including periods of use for HOA elections);

● Ineligibility to serve or removal from committees;

● Suspension of certain services such as reception / switchboard and valet parking service;

● Suspension of voting rights.

Certain Owner “Rights” May Not be Suspended

Many associations have management personnel who mistakenly believe that virtually all rights and privileges of owners can be suspended during periods of delinquency in the payment of assessments and/or rules violations. To the contrary, state laws and/or court decisions have established that the owners of separate interests within a homeowners association have certain “rights” that are not subject to suspension for the delinquencies and/or rules violations. Such rights include:

● A right of access to the member’s separate interest property;

● A right to uninterrupted use of utilities such as water, gas, electricity, and elevator service;

● A right to trash collection services;

● A right to attend board meetings and to address the board during open forum sessions.

Conclusion

For maximum success in the enforcement of governing documents homeowners associations should have properly drafted and adopted disciplinary policies that provide for the imposition of fines and also for the suspension of privileges as appropriate methods of enforcement. Such polices must be drafted in compliance with applicable state statutes and other requirements that may be specified in the association’s governing documents. In addition, before imposing any such discipline, the association must be certain to provide the alleged offending member with the required due process. Given the importance of having a properly drafted disciplinary policy, associations should engage their legal counsel for assistance in the drafting and adoption of such a policy.