By Ryan Harris, VF law Partner
Our Washington common interest communities are born out of the shared interests of our residents and neighbors. Individuals come together and choose to live in the same place because they share a common vision for what makes a community great. However, even the most closely aligned communities will change over time as people grow, priorities change, and new issues develop. When shared interests give way to disagreements over perspective and concerns over behavior, association boards and managers need practical tools to preserve order and protect the character of the community.
Monetary fines are often the most immediate enforcement tool available, the hammer in a manager’s toolchest. An effective fine can efficiently promote compliance and restore order. Used poorly, however, fines can create more conflict and headaches than an underlying dispute. This article examines the anatomy of an enforceable fine and gives practical advice for success in enforcement.
Start with a rule.
There can be no fine without a rule.
Whether a manager is dealing with allegations of physical assault, verbal harassment, online defamation, or simply a neighbor’s TV blaring at four in the morning, an instinctive reaction is often the same: “this behavior has to be prohibited, doesn’t it!?” Oftentimes the answer is no.
Washington community associations cannot levy or assess an owner with a fine simply because they are considered offensive or disruptive. The first question to ask is always: What rule is being violated?
Once you identify a rule, confirm that the rule was in effect before the alleged violation and that its meaning is clear. If reasonable people can disagree about a rule’s meaning, it is a weak basis for a fine. A nuisance rule that prohibits the “annoyance of others” is more vulnerable to challenge than one that describes objective examples of behavior that is considered annoying within the community. The semantics of a rule can be just as important. For example, if a nuisance rule prohibits conduct “on Association property,” it may not clearly reach online activity.
Keep penalties realistic.
The goal of a fine is compliance, not punishment. Accordingly, an enforceable fine must bear a reasonable relationship to the violation. If a fine is too low, it may be ignored or treated as an acceptable cost of violation. If it is too high, it may escalate the conflict and invite challenge. A $1,000 fine may be justified for a serious violation, such as an unauthorized structural modification or a physical assault, but the same penalty would be excessive for a trash can left out too long or unauthorized seasonal decorations. Frequency matters too. Even a modest fine, such as $25 per day for a garbage violation, can become problematic if it accumulates into a large claim that looks punitive rather than corrective and managers should take care to ensure that the violation remains the story, not the enforcement process.
Though it can be an uncomfortable question, it is always worth asking: Could I reasonably defend this fine in front of a judge in court? That is, after all, where a dispute may ultimately end up.
Give owners a chance.
Even a clear rule and a reasonable fine amount will not result in an enforceable fine if as association’s enforcement process is unfair.
Washington law requires communities to provide clear notice of an alleged violation and a meaningful opportunity to be heard before a fine is imposed. In practice, that process can also promote resolution more effectively than a rush to impose penalties. Residents should be given enough time to understand the allegation and gather information, be notified of their right to request a hearing, and be available and prepared to participate in the hearing if they choose to request one. As a practical matter, associations should consider providing at least 14 days’ notice unless their governing documents or applicable law require a different timeline.
Don’t play favorites.
Owners recognize when one resident receives a warning for conduct that results in a fine for another. Regardless of intent, inconsistent enforcement creates the appearance of unfairness and, at best, undermines confidence in a community’s board and management. At worst, it violates the law and can rise to the level of disparate enforcement or even discrimination.
Consistency in enforcement does not mean every violation of the same rule will be treated identically. Context matters. A first-time violator who is unaware of a rule is different from a repeat violator who has received multiple warnings in the past. What’s important is that every violation is pursued according to consistent process and never on a basis of a personal relationship, exhaustion, or irritation.
Write it down!
Boards change over time, memories fade, and people make mistakes. If a fine is not well documented, it is much harder to defend later. If enforcement procedures are not written down, it becomes much easier to treat similar fines and violations differently.
Rules and fine schedules need to be written to be effective, but associations should also document their enforcement procedures and keep detailed records of any dispute. Written enforcement procedures provide managers with an invaluable guidepost for avoiding allegations of disparate treatment. With a written procedure to follow, a manager can point to the process and explain that enforcement is not based on who someone is or who made the complaint, but rather on the same standards applied to everyone.
Conclusion
In the end, an enforceable fine is rarely about the dollar amount and behavior alone. It starts with a clear rule, depends on a fair and consistent process, and is strengthened by careful documentation. When managers approach fines as a tool with a defined purpose, enforcement is more likely to succeed, more likely to resolve disputes before they grow, and far more likely to solve problems than create them.