Estate Living Magazine Invest SA - Issue 45 September 2019 | Page 54

C O M M U N I T Y
L I V I N G
and restrictions in these areas, special care should be taken upfront to
deal with them differently than less volatile matters. That may well mean
going slowly when approaching these issues, and showing a flexibility
that is not always the hallmark of community association leadership.
Board and management should also seek professional advice when
confronting these difficult issues. It is far better to solicit the opinion
of the community’s attorney before an unflattering photograph of a
board member is on the front page of the newspaper. Indeed, this
may avoid any media attention at all.
might call the ‘no nothing, nowhere’ set of restrictions, which, if read
literally, would prohibit an owner from personalising the exterior of
their home in any manner. Most boards adopt a more relaxed view
of these documents, while seeking to rigidly enforce other rules with
more dramatic negative impact on the community.
There is no right or wrong in deciding which rules should be applied
more vigorously than others. Indeed, the personality of each
community, and the board that governs it, will often have a dramatic
impact on this prioritisation process. What is important is that the
board and whoever will be involved in rule enforcement (typically its
manager, committees, etc.) sit down early on and review every rule
and prioritise what matters and what does not.
Avoiding antagonistic struggles over the enforcement of rules is often
dependent upon the manner in which the enforcement process
begins. There is no requirement that the first step in the enforcement
process be a cold letter from the management company threatening
fines and other draconian measures in the event of continued non-
compliance. A friendly telephone call, or a softer letter that seeks to
educate a violating owner rather than threatening them, may prevent
a small issue from escalating further.
Some issues are more inherently controversial and emotional than
others, and require a more sensitive approach to not only avoid
controversy within the community, but also media attention that can
be polarising. Although ostensibly not on the same plane in terms of
importance, these issues share the common denominator of inflaming
passions or placing a significant portion of the community in one of two
or more camps. Accordingly, when communities seek to enforce rules
Associations should consider alternative enforcement mechanisms.
Many enforcement issues lend themselves to utilising outside
authorities as the enforcers, rather than pitting the association against
one of its residents. Examples include noise complaints, dog walking
issues, operating businesses within units and overcrowding concerns,
all of which are typically governed by local ordinances enforced by
local officials. When given that option, let the outside authority do the
heavy lifting. Sometimes, municipal officials will attempt to avoid their
responsibilities by claiming that disputes within an association are
occurring on ‘private property,’ and therefore beyond their jurisdiction.
This is often incorrect, and sometimes a short conversation with the
mayor or an appropriate letter from the association’s attorney is all that
is necessary to bring about compliance by the municipal authorities.
On occasion, the issue before the board concerns one owner
haranguing the board for failing to enforce a rule while another
takes the contrary position. If the board sincerely believes the strict
enforcement of the rule will not further its intended purpose, it should
explain the rationale for its position to the complaining residents, and
remind them that if they would like to enforce the rule themselves,
they are free to do so. While this may not mollify the complaining
owners, the approach is clearly preferable to involving the board in
a divisive issue that will linger far too long.
Managers are often confronted with the question of what their role in
the rule’s enforcement process should be. Certainly, it is to enforce
the regulations of the association, subject to the prioritising process
noted above. However, it is also to provide advice to the board and
association when the board may be going down a road with potential
adverse consequences. One of the sad consequences of managers
being criticised for their performance is that they become less and
less willing to offer advice in areas like this, for fear that they may be
criticised if things do not go well. However, an experienced manager
will often have handled matters such as this before, and their advice
should certainly be solicited and considered.
In conclusion, disputes involving even the most difficult issues need
not inevitably result in bitter struggles and bad press, and associations
can minimise that potential if they act slowly, carefully and with reason
in these sensitive areas.