There is perhaps no task more vexing for a Board of Directors than enforcing the Association’s rules and covenants. Done improperly, covenant enforcement actions can be tiresome, ineffective, and expensive. Incorporating these fundamental principles, the enforcement ABCs, can ensure that your Association is able to navigate this process with ease.
C is for Covenant
It seems simple enough, but knowing your Association’s covenants, rules, and restrictions is fundamental to enforcing them. The primary source of information is, as always, the Declaration and, to a lesser extent, the Bylaws. The Declaration will usually explain the rights of the members to use their property and the ability of the HOA to restrict that usage. The Bylaws will usually focus on the procedures the Association uses to carry out its business.
The Declaration
It is common for the Declaration to contain a section on general use restrictions. These often include restrictions on using the property for commercial purposes, parking certain types of vehicles on the property, or keeping types of animals on the property. All homeowners take their deeds subject to the Declaration, so their property rights are limited by the restrictions contained within the Declaration.
The Declaration may also contain a grant of power to the Board of Directors which gives the Board the ability to make and adopt rules and regulations. Depending on the wording of this clause in your Declaration, the Board may be able to adopt new rules without a vote of the members. The rules and regulations clause usually allows the Board to adopt rules that govern the use of the common areas, members’ conduct, or how a member is able to use their property. Importantly, rules adopted by the Board without a vote of the members may not contradict the Declaration or place new restrictions on usage of property.
For example, if leasing is not prohibited by the Declaration, the Board may not pass a rule to limit leasing. Examples of permissible rules include setting hours for usage of the recreational facilities, requiring that trash cans be stored out of sight, and limiting the amount of time which holiday decorations may be displayed.
A note on adopting rules and regulations:
If the Board makes a set of rules, it must also formally adopt and publish them. This means that the Board’s meeting minutes should reflect the adoption of the rules, and copies of the rules must then be provided to the members. A rule which has not been published to the community cannot be enforced.
B is for Breach
A common saying says, “rules were meant to be broken.” However, in the context of community associations, it seems more apt to say that, “if there’s a rule, someone will find a way to break it.” A breach of the Association’s covenants or a violation of the rules and regulations can create unsightly conditions or affect the ability of other residents to enjoy their property or the community. However, not every vexatious neighbor has actually violated the covenants or rules.
Identify the Breach
For general guidance, the Board should be able to clearly point to a provision of the Declaration or the Association’s published rules and regulations when notifying members of violations. The Board should also be able to identify when and how the violation occurred (bonus points are awarded for good documentation in the form of photos or maintenance reports!). If a member’s behavior is simply annoying or in poor taste, but there isn’t an explicit covenant or rule that forbids the behavior, the Board likely cannot do anything to prohibit it.
For example, let’s say your Declaration requires that homeowners receive approval from the Association before making changes or modifications to the exterior of their house or other structures on the property. A homeowner in the community decides to replace the roses in an existing flower bed in her front yard with a vegetable garden. This is a change to the landscaping, not a change to the exterior of the house or a change to a structure, so the homeowner has not violated the Declaration (unless there is a separate prohibition against corn and tomatoes).
Whether or not a behavior or condition violates the covenants may sometimes be a subjective or discretionary call for the Board. It is important to note that in these situations, where a violation is based on aesthetics or degrees of quality, reasonable people may disagree. This becomes very important if a subjective violation ever goes to a jury for consideration. One person’s unkept and neglected lawn might look just fine to someone else.
A note on nuisance:
Many Declarations contain a prohibition against nuisance. Some Boards interpret this to mean that any activity, no matter how mild or common, can be considered a nuisance if it rises to the level of other community members complaining about the activity. However, in order to enforce a nuisance prohibition, the activity must be so objectionably disruptive that a judge or jury could be convinced that court intervention was required to stop it.
A is for Action
You’ve identified your Declaration’s covenants, you’ve published the Board’s list of rules and regulations, and a member has clearly breached or violated them: now what? Now the Board must act. Options for HOA covenant enforcement and rules typically include the following: assessing fines, performing self-help, or filing a lawsuit for injunctive relief. However, a Board’s actual options for enforcement will be limited to the powers described in the Association’s governing documents.
Assessing Fines
While it is common for Boards to be able to assess fines, not every set of governing documents will allow this. Fines are often an effective first step in the HOA covenant enforcement process and can be assessed to compel or deter action on the part of the violator. However, fines should never be used as revenge or as a source of revenue for the Association. If the Board has the ability to assess fines on a daily basis for an ongoing violation, it is important to recognize whether or not the fines are having any effect. If daily fines for a period of one to two months have not prompted the homeowner into action, the Board must consider trying a different approach.
A note on notice:
Following the enforcement and notice procedures laid out in your Bylaws is crucial. Missing a preliminary warning, forgetting to offer a violation hearing, or failing to send the letter to the correct address could be a critical blow to the enforcement action. If you have any questions about proper notice, it’s always best to check with your attorney before moving forward.
Performing Self-Help
If fines aren’t working, the Board may want to consider self-help to fix the violation. As always, the Board must confirm that it has the authority to perform this remedy, but self-help is often the most efficient way to fix minor maintenance violations. It resolves the violation quickly and without the expenses associated with taking legal action. Essentially, self-help involves the Association stepping into the shoes of the homeowner to perform some duty that the homeowner has failed to do. Examples of situations where self-help could be appropriate include cutting the grass, repainting a mailbox, or trimming shrubs, etc. Costs of self-help can usually be assessed back to the homeowner.
Filing a Lawsuit
When a violation would be too invasive or too expensive for the Association to attempt self-help (such as replacing a roof or repainting a house), the Board may need to consider filing a lawsuit for injunctive relief. Injunctive relief is essentially asking the court for an order to compel or prohibit action from a homeowner. Many Boards are, understandably, reluctant to consider litigation to enforce the covenants or rules. However, if fines aren’t working and self-help is not practical, a lawsuit may be the only option for resolving the situation. While a lawsuit should never be entered into without due consideration, it is also important to be aware of statutes of limitations. These laws put a limit on the period of time in which the Association can bring a lawsuit; for matters related to violations of covenants, rules, and regulations, this period is typically two years.
Have Questions?
Contact NowackHoward and our team of experienced Georgia HOA attorneys for your legal needs and any questions you may have about HOA covenant enforcement.
