Q&A: Noticing Violations

Q     In this day and age, must notices of rule violations be sent by certified mail? Can they be sent via priority/tracking mail? Via email? Must complaints by others to a rules committee always be placed on a standardized form, or can they be emails, texts or even phone calls? Can certain violations, such as parking without permission or loud noise be 'automatically fine-able,' and then appealed to a board?

—Feeling Violated in Villa Park

A “When determining how notice of a violation must be sent to an owner, the association's governing documents should be reviewed to determine the proper method to send notice,” says attorney Gabriella R. Comstock with the law firm of Keough & Moody, P.C. in Naperville.

“Yet, even if the governing documents do not require it or if they are silent, it is a good idea to send notices of violation via certified and regular mail. Sending the notice by certified mail ensures that there is a paper trail that the notice was sent. Even if the owner does not claim the certified letter, if the notice sent by regular mail is not returned to the association, like the certified mailing, the presumption is that the notice sent by regular mail was delivered. I do not recommend that the notice be sent only by e-mail. Further, if it is sent by e-mail, this should only be done when the governing documents so provide and the owner has consented to receiving notice in this manner.

“It is a good idea for an association to have a form that a complaining witness is to complete. However, this should not be the only way for an owner to submit a complaint. That is the complaint from an owner that is submitted via email or other written means that contains substantially the same information as in the form should be considered by the board. All complaints should be in writing and if an owner submits a complaint by phone call they should be asked to submit a written complaint. This ensures that the board understands what is the complaint and it can properly investigate the matter.

“An association that is bound by the Illinois Condominium Property Act or the Common Interest Community Association Act a board only has the power to impose a reasonable fine after the violating owner has been given notice and the opportunity to be heard. If the owner elects not to appear before or to be heard by the board, the fine can imposed, but again, only if the owner was given notice of the violation and opportunity to be heard. It is a good practice for a board that finds an owner to be in violation of the governing documents to advise the owner that continued or subsequent violations for the same conduct that a monetary fine will be imposed. This is acceptable since after the first time the owner committed this violation they were given the opportunity to be heard by the board.

“It is important that a board always err on the side of always giving an owner an opportunity to be heard. This is especially important when the association has to seek legal action to enforce the violation. The last thing a judge wants to hear is that an owner tried to talk to the board and the board would not meet with him/her.”

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