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34. If the board member goes forward with planting the maple trees, may the board take action?
The community's governing documents authorize the board to impose rules on the structures and landscaping on individually owned property.
After the new rules passed, one board member, who had voted against the new restrictions, bought several maple trees with the intent to plant them in his front yard. While out walking her dog, the president of the board saw the trees being delivered to the board member's home.
The homeowners' association of a small real estate development recently issued, through its board, new landscaping rules for every one of the individually owned lots within the community. The new rules stated that owners and occupants, from now on, may only plant oak trees in their front yards. The stated purpose was to prevent the planting of any more maple trees, which had most commonly been planted around the community in the past. The seed pods from the maple trees often clogged the street sewers and required the board to hire extra landscaping workers to clear the pods each fall.
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There are some limits to the power of CIDs. There is a distinction between direct restraints on alienation of property and indirect restraints. Direct restraints are valid if «reasonable.»
By contrast, indirect restraints are invalid only if lacking in a rational justification, a less demanding requirement than reasonableness. Indirect restraints include use restrictions or other restrictions, such as pets, paint color, or planting restrictions, that limit the potential market for the property.
To ensure compliance with proper restraints, a board may:
(i) impose fines, penalties, and late fees;
(ii) withdraw privileges to use common recreational or social facilities;
(iii) require prior submission of plans for projects to ensure compliance with existing restrictions;
(iv) conduct reasonable inspections of property for violations, with a reasonable belief that such violation exists; AND/OR
(v) deny voting privileges or board positions.
B is correct. The new rule is valid and, if the board member violates it, the board may punish him by withdrawing privileges to use common recreational facilities.
This rule appears to be an indirect restraint, and therefore only needs to be rationally justified to be valid. A common-interest community only has the power to ensure compliance using fines or penalties or revoking privileges. This enforcement mechanism is directly related to the board, so it is proper and valid.
A is incorrect. This is the correct conclusion, but incorrect legal reasoning. The board may take action against the board member for violating this rule, but not in this manner. Going on to the board member's property to forcibly remove a tree is not within the power of the board. As stated above, it may withdraw the board member's privileges to use common recreational facilities.
C is incorrect. Changing specific regulations is generally within a board's power, even after owners move in, as long as the change is adopted in accordance with the board's formal procedures. This indirect restraint is rational and supported by the board's documents.
D is incorrect. The Fifth Amendment may prohibit some uncompensated «regulatory takings,» but that prohibition requires state action of some sort. This type of CID is a private entity and therefore not subject to the Takings Clause.