COVENANTS ENFORCEMENT, THE HOAs? & THE CC&Rs

A homeowners guide to covenant enforcement in the HOA

By Valerie Brown

                                                                One thing is certain; nobody likes receiving a letter from their homeowners association. Big or small, many of the conversations regarding these violations are identical; “This is a petty violation, my house is in good shape and there are far worse infractions in the community and nothing is being done”, “Why am I being targeted and harassed?”, “My neighbor doesn’t like me and complained about me”, the list goes on and on.

Most importantly, all of those feelings are the reality for a homeowner inside an Association. At one point, almost every homeowner has had a negative experience with their HOA, and it's unfortunate the topic is filled with such difficulties.  Practically every conversation about compliance and violations starts out with aggravation and disappointment in the HOA.  Violations can bring a sense of dread to homeowners and one can feel defensive and angry.  This feeling is not unique, and of course it is understandable, after all this is their property, your home, and feel you work really hard to make ends meet and keep your home as beautiful as the next and to the best extent you can.

The CC&R’s otherwise known as the Covenants, Conditions, and Restrictions of a community, are one of the governing documents for your association. Upholding and enforcing the CC&R’s is one of the most complex aspects of running a homeowners association. The Board has a duty and responsibility to reasonably and practically enforce the covenants and rules.

WHY DOES AN ASSOCIATION NEED RULES?                                             The rules exist because there are a variety of factors that can come into play when you have so many homeowners living in close proximity. Below are some categories of rules you may see in your own CC&Rs and some reasons why they may exist:

Common Area Rules: Rules may exist which seem silly, or redundant, but things such as no parking on common elements, sidewalks or landscape may be one example of those types rules. At times, if a rule doesn’t exist it can be viewed as it isn’t wrong and you cannot cite me for this issue. 

Architectural Rules: Any changes to your homes exterior may require the review of your Association, this may seem unfair, because what you want to put in your back yard is no one else’s business. However, the reason this rule exists is because what one person may do can and does affect the rights of another living in the community. Your community may have a specific theme and changes might not be in line with the theme or feel. Some quick ideas about what is included would be: walls or fences, structures, painting, building materials, pools or spas and landscaping plants, and designs.

Use Restrictions: This involves rules that discuss what a resident may or may not do in more detail. This would include provisions for things like no loud noises, construction work or music before or after a set time, household pet restrictions, breeds & other animal restrictions, parking restrictions (park in garage, no commercial vehicles), maintenance restrictions (you can’t make your driveway & community a car repair shop), or other similar issues.

Promote Community Harmony: While this one sounds funny, when one neighbor is upset about another neighbors actions, they contact the Association and they try to resolve the issue if it falls under one of the rules and regulations. This can avoid neighborhood disputes and conflicts with nearby neighbors. 

WHY DOES AN ASSOCIATION EXIST?  

A homeowners association is the legal entity that governs a community of homes, including subdivisions, condominiums, town homes, or planned community.  They operate to collect assessments from homeowners, which are funds set aside to take care of current operations and future maintenance repairs and landscaping of all common areas. Homeowners Associations came to be for a whole host of reasons, including:

• Helping land developers transfer the routine functions to an Association of the combined property owners
• They help City, County and other Officials by providing many of the services they would otherwise need to provide. This allows homeowners to have a single point of contact to handle all association concerns including maintenance and beautification of the common areas.
• Property values are preserved through consistent maintenance of common areas and by establishing standards for the maintenance of individual homes within the community. Some Associations have very little common area or elements, while others have millions of dollars worth of assets. 

WHY DOES AN ASSOCIATION HAVE AN INSPECTOR?                      

Inspections are critical to an Association, without regular inspections; covenant violations often go undetected which makes enforcement more difficult. An inspector may drive a car, golf cart, or even walk the community to inspect for all violations of the Associations rules. It is the duty of the Board to enforce the rules and regulations and the inspectors duty to notate what is seen in the community that violates those rules.  If an inspector notices weeds in your yard, you will probably receive a letter about weeds, with a picture, depending on the state you live. Let’s say rock is dumped and coned off in the street and the inspector sees it and verifies an architectural review application has not been received or approved, this would be adequate reason to send you a letter.

Homeowners can be emotional about the violation enforcement actions taken against them, because it is perceived as unfair and unjust, while other community members can be equally emotional about a seeming lack of enforcement.  Here are a few things to consider, violation enforcement is not always fully understood by the homeowners and because of the perceived reasoning’s, that things are unfair, even when properly cited and written, homeowners feel offended and may take on the view point of my home, my castle, this is nit picky and I am not going to take this.  Also the enforcement of violations can be very challenging because it appears as if nothing is being done, even after a complaint is filed, if the offending homeowner doesn’t comply and the violation continues to exist. The hardest part of combating this is in some states privacy laws limit what an Association can discuss with a homeowner if it does not pertain to their property. It is possible previous boards haven’t enforced the rules, or, it feels like there is selective enforcement.  All of these reasons combined lead to hostility towards an Association when a letter or correspondence is received.

REASONS FOR NON-COMPLIANCE FROM HOMEOWNERS                          

The Homeowners Association you live in should understand the different reasons why compliance hasn’t been achieved, but communication is the key to getting things resolved. If they have done any kind of demographics they will understand the multitude of reasons why things either haven’t been completed or homeowners haven’t reached out. If you haven’t fixed your compliance concerns there can be a million reasons why, and here are a few:

THE DISCONNECTED HOMEOWNER:                                                               

• First time homebuyers who are not familiar with the HOA concept, can get caught up in this area.
• A homeowner has a second home, or vacation home they haven't set up a mail forward for. 
• Renters on property with no updated billing address for the actual owner. 
• Experienced but apathetic homeowners, they don't care and don’t think anything will change, they are not engaged. 
• Where language barriers exist and English is not the first language. 

THE BUSY HOMEOWNER:

• Single Parent households, parent sometimes works two jobs, doesn’t have a lot of time
• Two parent households where kids are into every activity imaginable and don’t have a lot of time
• Traveling households (pilots, engineers, others) never home

HARDSHIPS:

• Willing and wanting to fix or remedy the violation but face serious disability, health reasons or financial issues that have thus far prevented a person from doing so, and may not want to share those hardships with anyone.

Overall, the best tool you have is to be honest and stay in contact with the Association, to explain you didn’t know this was a violation, or to explain why you disagree and what you will do to try to find a solution that will work, because the alternative may be steep fines.  In all situations, the Association should be open to conversations regarding the violation and convey a desire to work with you to address the issue. It is also important to remember; many issues may not involve the Association, and may require you to call the police, or other authorities.