Can the board fine people for rules violations that have been in existence even before we took over from the developer? We sent a letter to one unit for a violation and they ignored it. So our board had the maintenance man take down the offending decorations. Now the guy is going to file a lawsuit against the board for selective enforcement, failure to notify, destruction of personal property, etc. Can he do this? Will our insurance cover this? -- (Posted by 8bobby.)
Attorney John Libertine posted the following response: Assuming the rules were part of the existing bylaws when the infraction occurred, it is not improper for the board to enforce them now. The violations aren't excused merely because the developer as trustee neglected to enforce them.
Regarding selective enforcement, generally it is best to enforce the rules systematically and on an equal basis. That said, the board is entitled to prioritize their actions. If there is a current safety or budgeting issue that is taking up much of the volunteer board's time, it is not inconceivable that the board might reduce their efforts regarding enforcement of dog-waste pickup or parking for a few weeks, but the overall treatment must be equal with regard to all unit owners. With respect to the claims of the unit owner in question, his notice as to the rules comes from the condo docs. "Reminders" are nice but not required. I assume his decorations were not kept and returned to him - if they were disposable in nature, or of a nominal cost (string of lights, etc), the destruction of property claim would probably be considered frivolous. You may want to see if your bylaws detail what action will be taken when these "decorations" violations occur. Harassment: there are always a few unit owners who believe that the rules are not fair or don't apply to them. Sending notices of violations and removal of decorations after said notice is ignored does not constitute harassment unless it could be clearly linked to some motive other than keeping the property maintained to the standards outlined in the condo docs.
Hopefully you have a Directors and Officers (D&O) policy in effect. (Your condo docs should include a requirement for the association to carry this insurance on the trustees.) This will protect the trustees as individuals from the "sound/reasonable business decisions" they make on behalf of the association. As to the association itself, your master policy may cover your defense costs. I would consider making a review of your association's insurance policies a priority.
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