Oftentimes co-op, condo and HOA boards are faced with difficult choices when it comes to enforcing their community’s rules and regulations. Board service isn’t an easy thing, and while board members want to be understanding of their fellow residents, they are both legally and morally obligated to enforce board decisions as needed. One possible option in dealing with serious infractions is to deny access to community amenities – or even to property access.
Where is the Precedent?
Infractions by co-op, condo or HOA members generally fall into two categories: rules violations and nonpayment of assessments and fees. The question arises as to whether a board of directors has the option to penalize members by restricting access to and use of amenities as punishment for infractions and nonpayment to begin with. According to Michael Kim, a co-op and condo attorney and principal of Chicago-based law firm Michael C. Kim & Associates, the answer is “Yes, if the governing documents permit and provide for it. Basically, we are talking about amenities, not necessities. A gym is providing an amenity. It’s not a necessity. Elevator access is something else. Arguably, denying elevator access in a three-story building is not much of an inconvenience to an able-bodied person, but to someone who is wheelchair bound, that essentially is a shut-out. Of course, even if you are able-bodied and you live on the 40th floor of a 50-story building, such restriction could present a problem as a practical matter as well.”
Sima Kirsch, an independent attorney in Chicago representing co-op and condominium boards as well as HOAs supports Kim’s assessment that regardless of housing model, authority emanates from the governing documents. “As far as regulating violations of an association’s covenants, conditions and restrictions of record found in the operating documents, a board in Illinois may create rules and policies to govern daily life at the association, enforce use and occupancy rules, and other provisions. Due process must be observed at all times regardless of the situation.”
In order to avoid any possible claims, Kirsch recommends that “an association should first enact policy setting out the standards for action or behavior only if the governing documents do not specifically prohibit it, the board has adopted the discipline policy in advance, notice of the policy has been provided to all of the owners in advance. The violating owner [should be] given notice of the violation and provided an opportunity to be heard, to hear the facts supporting the notice of violation, and present defense.”
That said, Kirsch further cautions that “a board may not, however, take away the essential services of water, heat, or other utilities, lock residents out of elevators or [infringe] the rights that come with their ownership. A board may also restrict an owner’s right to be counted toward a quorum, but may not take away their right to vote. There is a fine distinction to be made before creating a policy.”