Enforcing Against the

Elephant in the Room

Marlyn Hawkins

Enforcing the governing documents against owners is one of the more difficult obligations of board members in community associations, but when the person allegedly failing to comply is a board member, what was merely distasteful can turn poisonous. Communities must enforce their governing documents as equitably as possible which means board members cannot simply overlook the violations of their fellow directors. When not dealt with head on, the issue becomes the “elephant in the  the enforcement does not happen. Not only is this inequitable, it infuriates owners and board members can be accused of breaching their duties to the association as a whole.

The short answer of how to enforce the obligations of the   board member at issue cooperates or not. Board members who are potentially violating the governing documents, whether they are delinquent in the payment of assessments or out of compliance with other provisions, must be treated like any other owner. But the problem is not really whether to enforce  Unless a community has a separate collections or enforcement            member will be involved in the discussions involving his or her own violation unless other arrangements are made.

When a board member is the subject of an enforcement  association and his or her self-interest. As a board member, they have an obligation to act on behalf of and in the best interests of the association, but as an individual, they may want to argue against the action or ask for special dispensation from the rest of the board. Ideally, the board member would recognize the conflict and should actually favor enforcement just as they would for any other member. Another good outcome if the board member recognizes the conflict would be for the director to recuse him or herself from any discussion involving the specific enforcement action. This can be accomplished          the last action in a board meeting so that the board member who is alleged to have violated the governing documents simply leaves the room or otherwise declines to participate in the discussion. The fact that the board member recused him or herself should be noted in the board minutes. Recusal is actually more beneficial than participation by the board member because in addition to being fair, it has the added benefit of the appearance of fairness to owners who review the meeting minutes or attend meetings. Knowing that the

24 Community Associations Journal | September 2017

board member did not participate in the decision-making process leading to an action against him or her provides owners with security that the board understands its duties to the association and that the targeted board member did not attempt to influence the decision in any way. Thus, recusal is the best possible outcome when a board member is the target of collection or enforcement actions.

A bigger problem arises when the targeted board member either refuses to recognize the conflict or does recognize the conflict, but refuses to recuse themselves from the discussion. Importantly, directors cannot be forced to recuse themselves, nor can the other board members simply hold a meeting without           governing documents may provide that an owner cannot be  but this is fairly rare.

Moreover, this language generally

does not address whether a current board member becomes disqualified to serve based on a delinquency or violation that occurs after the board member has been duly elected. In the absence of specific declaration or covenant language actually disqualifying the board member from participation, the board 

Nor can the board member be terminated from the board          compliance, because both the Condominium Act and the HOA Act provide that removal of board members is the province of the owners, not the board. Although the language is somewhat   by the members may only be removed by a vote of the owners.               Nonprofit Corporation Act, which applies to most communities         declaration is silent on the issue, only owners may remove board members. Nor do the statutes generally allow the board to change the qualifications for serving on the board.

Ultimately, where a board member subject to enforcement or collection refuses to recuse themselves from board deliberations of his or her own issue, the board must go back to the first           discussion and, to ensure a clean record, take an actual vote on how to proceed with actions against that board member.  members must understand that they, too, have duties to the community of consistent and reasonable enforcement, so going forward with a difficult discussion may just have to happen..