Obviously, the best-case scenario is option one or two. These are also the most common outcome for ACC denials as well. In both situations, the dispute is resolved with little or no attorney involvement and cost. Option two creates the most harmonious outcome where everyone works together, and the owners understand the parameters the association has in place and modify their project accordingly. The ACC should always try to point to the provisions that caused the denial and explain to owners that they can resubmit their request in a manner that conforms to the parameters in the association’s governing documents.
Point to the provisions that caused the denial and explain to owners that they can resubmit their request.
Option three, where the owner sues the association over the ACC, happens from time to time but is rare, in my experience. If your association is sued, you should immediately notify your insurance carrier, as they will typically assign an attorney to represent the association.
Unauthorized Home Improvement Projects
Unfortunately, more often than filing suit, an owner will decide to do the project anyway and force the association to make a move. Note, that the forthcoming steps are also often the same recommendations that I make when an owner does modifications without ever submitting an ACC application.
In either situation, the association should send a cease-and- desist letter as soon as they learn the unauthorized project has started. This letter essentially states that the work was not approved and demands that they stop the work and revert the property back to its original condition within a set number of days (or submit an ACC form if one was not previously submitted).
If the work continues or the owner does not revert the property back by the deadline prescribed, you should inform your general counsel attorney, who will likely send another more forceful cease and desist letter.
Self-Help Provisions
If the work persists or the owner still refuses to revert the property back, your attorney can assist you with determining if you have “self-help” provisions that allow you to enter the property to revert it back to its original
condition, and bill that expense back to the owner’s ledger. Your attorney will also be able to help you outline the specific procedures necessary to take those steps.
Bill reversion and repair expenses back to the owner’s ledger.
If your association can safely enter the property, do the necessary work, and bill it back to the owner’s ledger, that expense is often collectible in the same manner as any other assessment. Just like with all delinquent accounts, associations should follow its collection policy and send the applicable delinquency notices to the owner. If the owner does not pay, contact your association’s collections attorney to start the appropriate collection action, including recording a lien against the property.
Litigation
For associations that do not have the right to enter the property for repairs, or in situations where self-help is not the best option (the association has unclean hands, the owner has denied access or threatened contractors who attempted to enter the property/condo, or the project is so costly and significant that reversion is difficult) your best option is to file suit. Your attorney can assist you with what the circumstances require and what action is advisable, but an association is often able to get an injunction to stop any additional work from occurring while the matter is litigated. During litigation you can ask the court to either provide you with a court order requiring the owner to do the repair or allowing the association to enter the property to do repairs. The order can also include the right for the association to enter the property to make the repairs if the owner does not do so themselves within a specified time-period.
Secure an injunction to stop additional work from occurring while the matter is litigated.
Enforcement Actions
As a final reminder, your governing documents may also include the ability to collect attorney fees and costs associated with enforcement actions, so do not delay in getting your attorney involved early in your ACC disputes, even if it is simply to confirm the rights your association and/or the recommended action to take given the circumstances.
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