Attorney escalation

Why a board sends the letter, and when

A courtesy notice, a formal notice, a hearing, and fines are the usual steps before an attorney gets involved (see the enforcement lifecycle). If the violation is still uncorrected after that, the board is choosing whether to spend money on a lawyer against how serious the violation actually is. That is a judgment call the board is allowed to make.

"Covenant enforcement may require the exercise of discretion as to both the timing and manner of enforcement."

Source: Covenant Enforcement: The Role of the Business Judgment Rule, Altitude Community Law

That discretion is protected as long as the board investigated the facts, acted in good faith, and did not act arbitrarily. It is not protection for a board that simply forgets a rule exists. Sending the same kind of demand letter for the same kind of violation, every time, is also what keeps the association out of a later selective enforcement defense: an owner who can show the board went after them but let an identical violation slide next door has a real argument.

What the letter leads to: injunctions, and the self-help temptation

The attorney letter's real leverage is what it threatens: a court case. If the owner still does not comply, the next formal step is usually an injunction, a court order requiring the owner to stop or correct the violation. Whether a court will grant that order easily, or first demand proof the association is being seriously harmed, varies by state; check the case law your association's attorney relies on.

What a board should not do instead of waiting on the letter or the court is send its own crew to fix the problem. Self-help, the association correcting a violation itself, needs authority spelled out in the recorded declaration, and even then it is hard to enforce without a court behind it.

"We advise associations to seek a court order before entering onto another's property to cure a violation."

Source: Can the HOA Trespass to Correct Violations?, HindmanSanchez, published by ECHO

An attorney letter that sets up a court filing is a slower path than grabbing a ladder and fixing the fence yourself. It is also the path that does not expose the board to a trespass complaint or an angry call to the police.

Who ends up paying the attorney's bill

Boards often assume the violating owner will simply be billed for the attorney's time. Whether the association can charge its attorney fees back to the owner, and how much, is set by the declaration and by state statute, not by a rule that works the same way everywhere. Read your own declaration's attorney fee clause, and ask your association's attorney how your state treats it.

Until that question is answered, treat the letter's job as raising the cost and seriousness of continued noncompliance for the owner, not as a guaranteed payday for the association.