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Pictures are valuable evidence in enforcing community rules and regulations
by: Rob Samouce
12/04/2011
The board of directors of condominium and homeowner associations are charged with the task of enforcing their communities rules and regulations. The rules are on the books to promote a peaceful coexistence between members, tenants and guests. They are there to prohibit certain acts that the majority of the community find are offensive, cause a nuisance, and negatively affect the home and unit values.

For some communities, such unwanted acts can include the prohibition of parking in the street, parking trucks, vans or commercial vehicles on the property or the placing of advertising signs.

The rules may say no big dogs; no more than two dogs or cats; picking up pet messes by owner is required; association approval of prospective purchasers and tenants required; no swimming after dark; no unaccompanied or unsupervised minors in the pool; no glass or food at the pool; no loud music after hours; and owners must maintain their yard and home in a first-class condition.

The list of rules and regulations is usually quite long, but necessary, if keeping up the community as a place its members can feel safe in and proud of is an association’s goal.

Unfortunately, when a complaint of a rule or regulation violation is lodged with the board or management by an owner, many times it is made by a phone call or cryptic e-mail.

While this form of complaint may be enough to send the violator a notice to comply, it usually will not hold much water in court if violations continue by the offending person(s) in the event that legal action needs be taken to enforce compliance.

Recollection of persons and events can get fuzzy pretty quickly which many times leads to a he said/she said type argument. Therefore, judges and arbitrations may not give much weight to such verbal or unclear written allegations of violations.

The better practice is for the person, who witnesses the violation, to document it right away by writing down in detail exactly what they saw or heard. Even better evidence than a written recollection of events are pictures of the violation.

Today, just about every cell phone has a built-in camera so not much effort is needed for anyone to take a picture of the violation.

Dated pictures along with an affidavit or testimony of the person who took them are the gold standard of evidence. This is why banks, stores, hotels and casinos have so many “eyes in the sky” today. The thief positively identified in the bank photos is easily prosecuted. The shoplifter is caught red-handed and the casino cheat is readily removed or put away.

Likewise, when photos can be attached to the letter sent to the person violating community rules and regulations, the violator usually falls in line in following the rules. The defensive argument that it wasn’t me or you have it wrong doesn’t fly anymore. If the violator still does not come around after receiving a compliance letter with photos, well then you have great evidence if the next step to arbitration, mediation or court is required to obtain compliance.

Members need to understand that although it is the board’s duty to enforce compliance of rule violations when it becomes aware of the violations, members need to feed the board with competent evidence so the board can do its job.

If the make-up or desires of the community has changed since the original rules and regulations were drafted and the majority of the owners believe that some of the rules are outdated and do not fit the community anymore, then such unwanted rules should be removed by either vote of the members or of the board depending upon which vote is required.

If you want your board to enforce rules being broken that are bothering the members, give them pictures. As “they” say: A picture is worth a thousand words.
Rob Samouce, a principal attorney in the Naples law firm of Samouce, Murrell, & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners' associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.