Page 22 - NJ Cooperator Winter 2020

22 THE NEW JERSEY COOPERATOR —WINTER 2020 NJCOOPERATOR.COM builds something they’re not allowed ter—and it can create a terrible environ- to—like a bench. If no one says anything ment and often results in a board being for too long and others do the same, and removed. If it’s discriminatory, it could then a new board comes in and tries to bring a lawsuit—a very serious one.” enforce the no-benches rule, it becomes much more difficult. You’ve allowed the ity be considered in all enforcement by infraction for too long,” and it becomes a the board. There cannot be selective en- fact on the ground. Limiting Access to Amenities Another potential disciplinary ac- tion boards can take against owners and be made. Boards may consider waving shareholders who flout the rules and fines for lateness in some cases. Every- regs is to limit their access to commu- nity amenities, like a pool or a gym. Both pay their bills. It is true, though, that a Brooks and Hakim advise against this. “Absent express permission in the advantage of this situation. No blanket governing documents to do so,” says immunity should be issued, but some Hakim, “we do not recommend it. We kindness is expected.” recommend that each board revise its governing documents to permit, if not already included, the imposition of fines Hakim. “The building staff are the eyes for a breach, and other remedies such as and ears, but should generally stay out removal from the board, if a board mem- ber.” Brooks sees barring owners from example, it would be acceptable for the common areas or amenities as very det- rimental to the association. “It’s difficult that. If the resident refuses to leave, then to do in Massachusetts to begin with,” he it should be reported to the board. I pre- says. “How do you enforce it? It can be- come very ugly. If an owner is revoked in the daily lives of residents not get into access, he might say he has an undivided confrontation with anyone.” interest in the common areas in the deed. How do you take that away? I don’t like it, tionally, a unit owner or a board member but sometimes owners don’t challenge it, would report a violation to the full board so it can in some cases be effective.” Proceed with Caution While thinking outside the box is usu- ally a good thing, the pros who contrib- uted their expertise to this article gener- ally feel that boards should avoid getting In all cases, building employees should ‘creative’ when it comes to rules enforce- ment. “The board cannot discriminate in board members should use discretion its application of the house rules,” says before commenting themselves. That re- Hakim. “Eighty percent carpeting gener- ally means eighty percent carpeting. The it’s minor, okay, but it should be done in Business Judgment Rule does permit a a very polite way.” board some flexibility depending on rea- sonable facts, allowing them to enforce forcement should be the responsibility or delay enforcement from time to time, of managers and staff. Board members including the issuance of a warning rath- er than a fine, for example. “That said, it’s important never to benefit of all residents. They may not show or have favoritism in rule enforce- ment,” he continues. “Residents are gen- erally accepting when the enforcement of mony. Boards must consider all options a rule differs slightly based on facts, the when seeking enforcement, but always board wishing to seek an amicable solu- tion, and similar items.” Brooks also cautions against even the in the best interest of the community. appearance of discrimination. “There are legal consequences for unequal enforce- ment,” he warns. “If you don’t enforce rules equally, and go to court, an owner could have photos and evidence that they were treated unfairly. It looks bad for a board. A court will research the mat- “It’s critical that fairness and equal- forcement,” says Piekarsky. “Now, facing special circumstances regarding COVID, some case-by-case considerations should one is challenged, but associations must minority of residents are taking unfair Who Should Do the Enforcing? “The board enforces the rules,” says of enforcement. However, if a resident is not permitted the use of an amenity, for staff member to remind the resident of fer that staff members who are involved Brooks further cautions that “tradi- and/or management, and management will then provide an enforcement letter. It’s less personal than a board member getting involved. With respect to the cur- rent COVID crisis, this is very important. not get involved in enforcement—and ally depends on the situation as well. If Piekarsky’s position is that rule en- should never be involved. Community rules are there for the be universally liked, but they must be obeyed in the spirit of community har- make sure that enforcement is within the law and the community’s documents, and n A J Sidransky is a staff writer/reporter for The New Jersey Cooperator, and a published novelist. LIVING BY THE RULES continued from page 20