One of the biggest worries an association often has is that some part of its agreement with homeowners won't be enforceable. If a small crack in the agreement can be exploited, it can create trouble as other parties start to insist upon doing things outside the framework. Here are four things an association attorney will tell you to try to make your agreements as enforceable as possible.
Among the simplest of legal arguments a homeowner might use is that some element of the agreement wasn't specific. Courts generally frown upon overly broad language in agreements. If a clause is deemed to be too generic or open-ended, a judge will typically favor the non-drafting parting. That means whoever didn't write the clause is likely to benefit from how it is interpreted. Your association is considered the writer, and that increases the chance you'll lose the argument if it goes to court.
Courts also dislike clauses that a very broad in scope. For example, it's wise to have sunset provisions in the agreement. This will keep the scope narrow by forcing the association and the homeowner to enter into a fresh agreement. A clause that stays in effect forever probably is considered too broad in scope, and that can create legal trouble. One bonus of this approach is that sunsetting the agreement will also allow you to modernize it with each renewal, allowing you to keep up with technological and social trends.
Suppose someone has a complaint. There should be a set of processes that give the homeowner a fair chance to file a complaint within the association's governing framework. Property owners should know who they'll have to complain to, and they should understand, based on the wording of the agreement, how long the review process will be.
Likewise, there should be some capacity to appeal the outcome of a complaint. An association will have a board, and folks with complaints should be able to make their appeals to the board in a timely and structured manner.
Clear and Fair Punishment Procedures
Everyone should be aware of how punishments will be handled. For example, an association might use a strikes system where the first strike doesn't lead to anything but a note on the homeowner's record, a second strike is met with a fine, and a third strike is followed by legal action. In the absence of these sorts of definitions, a court may find the process to be arbitrary and nullify the agreement.
Speak with an association attorney for more information.