Do Associations Have an Obligation to Enforce Rules/Covenants

Loura K. Sanchez | Friday, April 26, 2013 | Community Associations Miscellaneous

In an interesting blog written by David Swedelson, an experienced community association attorney in California, he discusses a recent New York Times article which said that neighborhood nuisances, like overgrown yards or a persistent odor, could bring down the value of adjacent homes by 5-10%.  One of the primary purposes for most association and restrictive covenants is to “preserve, protect and enhance property values.”  Therefore, it is the duty of the board to consider all alleged violations of rules and covenants and to take appropriate action to correct the violations. That action can range from friendly reminders, to fines to legal action and other remedies as discussed in this article.  And, as we saw in David Firmin’s post on failing to seek FHA certification, we could also see a case for failing to protect property values by failing to take action to enforce the recorded covenants.

Comments

I have always considered it mandatory that all parties comply with the covenants of a community. That includes the association, and one of its duties, as mentioned, is to see that everyone does comply with the covenants. These are contained within the declaration, which is a binding document and contract that runs with the land. I think the association, through its board has more discretion and leeway with respect to rules, but these are still binding if the association chooses to enforce them. That being said, however, I have also always maintained that it is prudent to enforce the rules consistently and uniformly across the board, in accordance with the published enforcement procedures of the association. Failure to do so leaves the association open for claims of discrimination, harassment, and preferential treatment. Once an owner gets it into his mind that this is the case, it becomes personal, and, even though this may not be the case, it will be difficult for the board to defend its actions from that point forward. It is always best to treat everyone exactly the same, and, if a variance or waiver is granted, it should be voted upon by the entire board at an open meeting, and the reason(s) for it should be noted in the minutes. That way, the board has something to fall back on if an owner feels aggrieved.

As a board member I was repeatedly advised of the obligation to enforce rules and covenants. As an owner, how do you go about getting the Board and Management Company to understand this legal obligation? What tools are available to the owners to ensure they meet this obligation?

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