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Enforcing Your Association's Covenants

One of the major benefits to living in either a condominium or homeowners association is the protective covenants governing the use of the land and the conduct of people in the community. These covenants benefit everyone that lives in the community and help to preserve, protect and increase property values. Enforcement of these covenants is essential to the continued success of a community.

Enforcement of covenants is a very serious issue. Boards of directors have a duty to enforce the covenants and may be liable to the members if they fail to do so.

• Review your documents for authority. Typically, the declaration or bylaws for a community association contains covenant enforcement provisions that identify the enforcement powers available to the association and the procedures for using those powers. Generally, an association is limited to using those enforcement powers specifically granted in the declaration and bylaws. It is essential that boards determine what powers are granted under the community's legal documents and strictly follow all due process procedures stated for using these powers. Some of the more common enforcement powers available to community associations are as follows.

• Fines. This is often the most effective remedy. Georgia courts have held that a $25.00 per day fine for a continuing violation is a reasonable fine. If the violation is not of a continuing nature, but is either a one-time occurrence or occurs sporadically, a greater fine may be justified based on the severity of the conduct or to discourage the conduct in the future. Most association documents provide that fines may be collected like assessments. Many association documents also require written notice to the violator of the violation and fine, and some opportunity to meet with the board to discuss the issue. Even if association documents do not provide an opportunity for a meeting between the violator and the board, the board should consider offering this because face-to-face meetings can be extremely useful in trying to resolve disputes with owners.

• Suspension of Voting and Common Area Use Privileges. This remedy can be effective if used before the pool is scheduled to open for the season, or before the association's annual meeting.

• Recorded Violation Notices. Many community legal documents authorize the association to record notices in the county land records identifying uncured violations on lots or units. This can be very effective in a strong real estate market with a high amount of home turnover.

• Self-Help. Many community legal documents also provide associations the right to use self-help or a right of abatement to address covenant violations. Typically, a self-help provision allows an association to correct a covenant or rule violation on its own and assess the costs back to the violating owner. Lawn maintenance is a common example of this. If an owner does not regularly mow his or her yard, then, using self-help powers when available, the association could hire someone to cut the grass and assess the costs back to the owner.

One major drawback to using self-help is that the association often has to go on the property of the violator to remedy the violation. This often leads to unwanted confrontations with hostile owners and, occasionally, with law enforcement officers who may not be aware of the association's powers. Another drawback of self-help is the risk of causing damage to an owner's property. For example, in removing an unauthorized deck, an association may inadvertently cause damage to an owner's house. Because of these concerns, boards should be extremely cautious and conservative in using self-help as a remedy. One good starting place before using self-help is to contact both the association's attorney and its directors' and officers' liability insurance carrier to find out if they object to using self-help in a specific situation.

• Legal Action and Injunctions. If boards of directors are unable to get violators to correct their violations, then Georgia law generally allows boards to bring lawsuits against violators to either compel the violator to comply with the community's legal documents or to enjoin a violation. For example, an association may seek a court order requiring an owner to repair and paint a deteriorated home or to remove an unauthorized addition or modification to the home, or an injunction against leasing a home in violation of a leasing restriction in the community's legal documents.

In all cases, the most effective enforcement starts with communicating with the violator to try to get the violation corrected. If these disputes can be resolved as good neighbors, then the other enforcement remedies become unnecessary. However, this is not always possible. It is important for boards to know that covenants are enforceable and to determine the powers available and appropriate for each situation.

With an understanding of what powers are available under a community's legal documents, it then is important that the board be diligent in enforcing the covenants. Boards of directors must be cautious to enforce covenants in a consistent, non-discriminatory and timely manner to minimize the risk of challenges based on statutes of limitations, selective enforcement or laches. If the association does not take action at its earliest notice, it risks being prohibited from enforcing the covenant at a later time.

To avoid these problems, the association's board or its representatives should make regular, thorough inspections of the community to identify potential covenant violations, and the association should act on violations as soon as possible.

If you would like to discuss your community's collection issues with us, please contact us.