Self-help is when an association board corrects a violation directly. Sometimes, it is allowed by an association’s governing documents. For instance, it’s possible that a board may be able to have a professional come in and remove the three feet tall weeds on a lot and charge the cost back to the lot owner, but only if the CC&Rs permit it and only according to the process set forth in the CC&Rs.
Absent express authority in the CC&Rs, how far is an association allowed to go in exercising self help? For instance, can a board prevent a non-compliant or delinquent homeowner from access to and from the owner’s lot or unit? Generally, the answer is absolutely not. However, in Rowley v. Marrcrest, the Rowleys purchased two empty adjacent lots and proposed one driveway exiting into a street. Later, the Rowleys sought association approval for a second driveway that exited into an association parking area and which would remove at least one available parking space. The roads themselves are too narrow for parking, so parking was important. The Rowleys received conditional approval by the association. When they constructed the second driveway, the ignored those conditions.
Later, the association constructed a berm and planter box across the entrance to the second driveway while the Rowleys were out of town.
The Rowleys argued the HOA cannot construct planter boxes for the sole purpose of injury to a homeowner. As a general rule, "one who erects an otherwise useless structure for the sole purpose of injuring a neighbor makes an improper use of his property." See id. at 419. However, the planter boxes were on HOA property and blocked an illegal use of the common area by the Rowleys. The general rule, stated above, does not apply in this case. The court found that the Rowleys constructed the second driveway without written association approval and that the Rowleys' use of common area for access to their driveway was an illegal one and as such, the HOA could properly construct planter boxes to block the driveway and render the driveway and carport useless.
However, a case had a very different outcome in Florida. In Parton v. Palomino Lakes Property Owners Association, Inc., the governing documents of the homeowner association prohibited mobile homes. A lot owner decided to install a modular home permanently attached to a concrete slab, and attempted to have it delivered to the lot on three different occasions. However, on each occasion, the other owners, three of which were board members, blocked the delivery of the home by blockading the common roadway entrance to the subdivision. By obstructing the common roadway, the court held that the other owners violated the subdivision's deed restrictions.
The lot owner sued the association and the individuals personally and won. The owner was awarded punitive damages of $40,000 against one board member, $50,000 against another and $60,000 against the other. The owner was also awarded compensatory damages and their attorney fees. This Florida board failed to make an informed decision and exercise careful judgment before they acted, which had drastic consequences.
A board must act very carefully in exercising self-help remedies. Self-help should be a last resort and only entered into with consultation from a qualified attorney.
(For reference: 57-8 is the Condo Act, 57-8a is the Community Association Act, 16-6a is the Nonprofit Act)