By William H. Short, Esq.

Over the past few years, public sentiment towards homeowner associations has become increasingly unfavorable.  Much of it stems from covenant enforcement issues and the steps taken (or not) by boards of directors.  This has resulted in legislation to make homeowners associations more “user friendly" regarding restrictive covenants. Consequently, courts often hold associations to a strict standard, requiring precise observance of the procedures in the covenants and in rules and regulations.   

Most associations are faced with the reality that at one time or another they will need to take an owner to court to enforce restrictive covenants.  Many pitfalls leading to such action can be avoided by using some common sense precautionary measures.

Education - Board and architectural committee members must familiarize themselves with the governing documents so they can properly initiate enforcement. This includes a careful review of the declaration of covenants, the articles of incorporation, the bylaws and rules and regulations. Frequently, homeowner associations lose enforcement efforts, because of the failure to follow basic procedural requirements set forth in the documents.

Communication - All governing documents are required to be available to the membership. Every community has recurring covenant enforcement issues, many of which can be avoided through announcements, newsletter articles, flyers, and discussions during open forums conducted as part of regular board meetings.

Consistency - Board and architectural committee members should be familiar with how similar covenant provisions have been handled in the past. If a new board membership decides to embark on a more stringent or less stringent covenant enforcement process, it should thoughtfully articulate the reasons why it is doing so. Those enforcing covenants should be able to justify with objective common sense reasons why similar covenant enforcement actions were or are handled differently.

Compliance, not punishment – The purpose of covenant enforcement is compliance, not punishment.  A phased approach to enforcement may start with a friendly phone call or personal contact, followed by a few letters, thereafter followed by a letter from legal counsel. Associations should strive to engage the owners in a dialogue before initiating legal action.  Each step should give a reasonable period of time within which to achieve compliance before the next enforcement step is taken. All steps taken should be carefully documented, so that the association can demonstrate all the efforts it made prior to initiating legal action.

Remain impartial - If the board or architectural committee member is a neighbor or has a personal stake in the outcome, that person should not participate in any enforcement steps. Documenting conditions through a written complaint form, photographs, and personal visits is appropriate and avoids claims that the enforcement action is subjective or one-sided. If a hearing is conducted, there should be plenty of opportunity for the owner to present their side of the story, and to present alternative solutions. If the board decides to impose fines, it should agree to suspend or waive those fines if compliance is achieved within a reasonable time.

Although the old phrase about communication is overused, it is perhaps underutilized. If associations can make an effort to establish personal lines of communication with owners during a covenant enforcement process, it usually makes formal and expensive covenant enforcement action unnecessary, and more successful if the communicative steps can be proven in a court action.

Community E-ssentials, May 2008