A common problem that is addressed by homeowners association management personnel pertains to dealing with those that are violating HOA rules. Unfortunately, statistics show that renters tend to violate homeowners association rules more frequently than owners. The likely reasons for this is that: (i) tenants do not have a financial interest in the leased property; (ii) tenants do not have voting rights; (iii) tenants cannot participate on boards or committees; (iv) tenants tend to be less connected to the HOA; and (v) tenants are typically more transitory in nature.
In the typical homeowners association, the HOA has the power to enforce rules against the owners of properties within the association, but not directly against the owners tenants. This results in a situation where the associations management personnel must communicate with the property owner and rely upon that person to take appropriate action against their tenant. Because the property owner does not reside within the community, and frequently is located in a different city or state, they too are less connected to the association and less inclined to put forth the effort and/or incur the expenses of taking action against their tenants who are not complying with HOA rules. So what should HOAs do to enforce their rules against tenants?
The successful enforcement of rules against tenants starts with the association having appropriate policies concerning the leasing of units or properties within the association. Those polices should include requirements for landlords to provide a complete set of the associations governing documents, including all rules and HOA policies that the tenant is required to comply with, prior to the commencement of the lease and the tenant(s) taking possession of the property. Those policies should also require the use of a standardized addendum to the lease agreement that is provided by the association. Such an addendum contains terms that include an acknowledgement by the tenant(s) of receipt of the governing documents, an agreement to comply with them, and direct enforcement rights on the part of the association.
In addition to having appropriate policies in place, the association needs to be proactive in enforcing their policies and violating HOA rules. Often, ongoing problems with tenants are a result of lack of involvement by the association and a failure to take action to enforce association policies and rules. When rules violations occur, the associations management personnel should promptly notify the unit or property owner, in writing, of the details of the alleged violation by the owners tenant(s), including the date and time of the alleged violation. This communication should remind the owner of his or her responsibility to take appropriate action against the tenant and that a failure to do so will result in enforcement action by the HOA against the owner.
The most commonly employed method of dealing with rules violations is the imposition of fines or other forms of discipline on the owners, and if the associations governing documents allow for it, on the tenants. State laws and association governing documents always mandate that appropriate internal hearings must be conducted in order to determine if there has been a violation before penalties can be imposed on owners and their tenants. If the associations governing documents allow for the assessment or imposition of penalties directly on tenants, the hearings must include the owner and the tenant(s) in order to provide them with due process and an opportunity to be heard concerning an alleged violation. If the association is only taking action against the owner, the hearing does not need to include the tenant. Nevertheless, because the hearing involves those that were allegedly violating HOA rules, it is likely that the owner will request the tenant(s) to attend the hearing as a witness.
There are some types of violations by tenants that do not necessitate action against the unit or property owner. For example, a parking violation or a breach of the law by a tenant can result in the tenants vehicle being ticketed or towed, or involvement by law enforcement personnel directly with the tenant.
When addressing issues that involve tenants, it is important to remember that tenants of homeowners are not without rights. Some of those rights stem from the contract (lease) between the tenant and the property owner and others come from state and federal laws. Besides state has laws that govern landlord-tenant relationships, there are federal laws such as the Fair Housing Act that apply to both landlords and homeowners associations which primarily deal with discrimination and unreasonable restrictions that impact certain classes of peoplesome of which happen to be tenants. A failure to recognize tenant rights can result in the association, and in some instances its management personnel individually, becoming embroiled in costly litigation with tenants over claims of discrimination and violation of their rights. Because such litigation is damaging to the association in many respects, it is important for homeowners association management personnel to be mindful and respective of the rights of tenants when addressing issues involving tenant conduct. When in doubt, take the conservative approach and seek guidance from the associations legal counsel on the appropriate way to deal with issues involving tenants.