Due Process in Condominium and Homeowner Associations
Among the express powers vested in condominium and homeowner association boards are those related to covenants and rules enforcement, including the power to impose fines and penalties for infractions and to file legal action to achieve compliance. However, despite the gravity of a violation and the absence of a meritorious defense, the process of enforcement must preserve certain fundamental principles of fairness. The 14th amendment of the United States Constitution states that no person shall be deprived “of life, liberty, or property, without due process of law”. Although intended primarily to safeguard individual rights from oppression of the state, due process protections apply in certain private matters, including those of condominium and homeowner association boards.
The law distinguishes “substantive” from “procedural” due process:
While on its face [the due process clause] speaks to the adequacy of … procedures, the Supreme Court has held that …it also has a substantive component”. (See, e.g., Planned Parenthood of S.E. Pennsylvania v. Casey, 505 U.S. 833, 846–47, 112 S.Ct. 2791, 120 L.Ed.2d 67 (1992) (“it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure”) (quoting Whitney v. California, 274 U.S. 357, 373, 47 S.Ct. 641)
Substantive due process refers to the actions of a governing body in legislating. In the association context, boards must have legal authority to govern the relevant subject matter; for example, an association board cannot adopt a rule that is inconsistent with its recorded governing documents or that is otherwise illegal (e.g. discriminatory). Stated very simply, substantive due process refers to the legislative process rather than to the enforcement procedure. However, condominium and homeowner association boards are generally careful legislators, and are thus more likely to encounter procedural, rather than substantive, due process violations.
The procedures by which violations are determined and fines are levied must meet “fundamental principles of fairness”. These principles are rarely codified, but minimally mean “notice and an opportunity to be heard”:
The essence of procedural due process is notice and the right to be heard. The notice must be reasonably calculated to apprise a party of the pendency of proceedings affecting him or his property, and must afford an opportunity to present his objections before a competent tribunal. (Fairwood Greens Homeowners v. Young, 26 Wn. App. 758, 614 P. 2d 219, 223 (1980))
This is consistent with the Pennsylvania Uniform Condominium Act, which vests in associations the power, “after notice and an opportunity to be heard, [to] levy reasonable fines for violations of the declaration, bylaws and rules and regulations of the association”. (68 PA.C.S.A. Section 3302(a)(11)) Accordingly, in all matters of covenant or rule enforcement, boards must give to the violating unit owner written notice of the violation and the right to a hearing. It matters not what format, protocol or tribunal – required is only that written notice and an opportunity for a fair hearing be given:
Due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. (Cafeteria Workers v. McElroy, 367 U. S. 886, 367 U. S. 895 (1961)) Due process is flexible, and calls for such procedural protections as the particular situation demands. (Morrissey v. Brewer, 408 U. S. 471, 408 U. S. 481 (1972))
Although a particular infraction may be glaringly obvious, all violation procedures must follow a consistent process. In the same way a parking ticket can either be paid or appealed (even if the car is parked directly next to the fire hydrant), a homeowner must be permitted to challenge the notice of violation and the resulting fine. In rare cases where the governing documents expressly contain “due process” and violation procedures, it is incumbent upon boards to follow them strictly. Absent such guidance, a violation notice must inform the homeowner of the right to a hearing, and set forth instructions on how this right may be exercised. The following are typical examples: “You have the right to appeal this violation by making, within ten days of the date of this notice, a written request for a hearing before the board”, or “A hearing has been scheduled on November 10, 2017, during which you may appeal this violation – please advise whether you intend and are able to appear”.
As stated above, unless expressly set forth in the governing documents (which may implement a formal grievance process), the format of the hearing, and the tribunal before which the hearing is conducted, are less significant. Whether the hearing is before members of the board or a grievance committee, the tribunal must provide a fair opportunity for the homeowner to challenge the violation. Formal rules of evidence and the right to be represented by counsel are therefore not necessarily required. The homeowner accused of the infraction must merely be allowed to reasonably show, through his testimony, witnesses or other documentation, that no violation occurred.
Whatever the format and the requirements of the recorded documents, enforcement procedures must preserve “due process rights”. ADR, mediation, grievance and violation hearings are all intended to safeguard these fundamental principles of fairness. Boards may not impose automatic fines and expect that, because they believe no meritorious defense or justification exists, the penalty will be enforceable. Notice and the opportunity to be heard must be given before a penalty may be imposed. Absent “due process”, any resulting fine or legal action may be unenforceable – in the best case, a court may remand the matter with instructions for the board to conduct an internal hearing; in the worst case, it may dismiss the matter entirely.
Boards should not view the due process hearing as an annoyance. Granted, such hearings are not generally fun and may be uncomfortable. However, equally as important as compliance with law is the opportunity to meet in person – and potentially to resolve the violation. Nothing lends objectivity to a letter writing and email contest like sitting in the same room. At some point during the proceeding, boards and homeowners should at least consider the prospect of amicable resolution. While not all disputes can be worked out, the due process hearing is the perfect forum to gauge the merits of opposing positions and to attempt compromise. Indeed, if the matter proceeds to trial, the judge will inevitably ask the parties if they have attempted to work the matter out, and even if they have, will demand that they try again.
“Notice and the opportunity for hearing” are not merely buzzwords, but are critical components of the American justice system. Associations should thus review not only their rules and covenants, they must assure that their procedures comply with law. While compliance with due process is essential to the enforceability of enforcement action, it also creates opportunities for non-adversarial solutions.