Common problems experienced by homeowners associations include the non-payment of delinquent assessments owed by association members and violations of association rules or provisions contained in the association’s conditions, covenants and restrictions („CC&Rs“ ). Traditional enforcement methods that are limited to the imposition of monetary charges on the homeowner such as interest, late fees and penalties are frequently ignored and do not result in collection of the delinquent amounts or fines that are owed and/or compliance with the rules or CC&Rs that are being violated. Resulting lawsuits that are filed by the association against the offender(s) are costly, frequently take months or years to get a result, and often don’t achieve the desired result. An under – utilized and frequently over-looked course of action that is available to associations that experience such problems is the suspension of member rights within the association.
The various privileges that association members and their tenants and guests enjoy include such things as: (i) the use of common area facilities like a clubhouse, pool or gym; (ii) serving as an officer, director or committee member; (iii) reception and parking services; (iv) and voting rights. These privileges are not absolute and are subject to reasonable rules and regulations that have been adopted by the association.
While there are many privileges enjoyed by association members that are subject to suspension, there are also privileges that cannot be suspended such as: (i) denying a member or his/her tenants and guests physical access to the development (gated entry), common elevators, or the member’s separate interest; (ii) cutting off trash and/or utility services such as water, gas, or electricity that is under the control of the association; (iii) the right to attend open board meetings and to address the board during open forms at board meetings;
To be in a position to impose a suspension of privileges on an association member, the association must have a properly adopted policy re fines and penalties for violations of the association’s governing documents that has been provided to the members. Such a policy must specifically include the right on the part of the association to suspend a member’s privileges within the association as a disciplinary measure for uncorrected violations. Similar provisions should be contained in the association’s policy re collection of assessments. The suspensions provided for in these policies should be carefully considered, temporary, and appropriate for the particular violation. Such policies must also be consistent with any applicable state statutes that mandate procedural requirements that must be followed in order to suspend certain privileges, such as voting rights. The procedural requirements typically include provisions relative to providing the member with due process in the form of a properly noticed hearing and an opportunity to be heard concerning the violation(s) before a discipline, including the suspension of privileges, can be imposed.
If properly authorized and utilized, the suspension of member rights and privileges for non-payment of delinquent amounts and/or enforcement of rules and CC&Rs can result in an expeditious low cost solution to a problem that could otherwise become costly and remain uncorrected for lengthy periods of time. Association boards and management personnel should be aware of the content of their bylaws and CC&Rs relative to the suspension of member rights and privileges and should be well versed in the procedural requirements that must be complied with for the suspension of member rights. Association’s that do not have any, or which have inadequate provisions in their adopted policies relative to the suspension of member rights and privileges, should consult with their legal counsel for assistance in the review and modification of their policies to properly allow for same and for guidance in the proper procedures to follow in order to implement the policies that allow for the suspension of a member’s privileges.