This article is presented in six parts:
Part One – Covenant Violations
Part Two – “I want to opt out of the HOA”
Part Three – How are violations determined?
Part Four – How are managers trained to find violations?
Part Five – Hearing Letters
Part Six – “Nothing like that would happen in our community even if we did not have the HOA”
As previously stated, each HOA is different, with different CC&Rs, and some with unique covenant compliance requirements. With this said, HOA covenant enforcement revolves around the two most common violations of failure to cut grass and failure to roll in a trashcan. Parking on the grass is a distant third enforcement issue; however, some HOAs have a larger problem with this than others.
Noncommon or non-everyday covenant violations typically come down to the experience of the manager and their familiarity with the HOA. It is safe to say, that 99% of the time if something is in violation of one community’s CC&Rs, it is a violation in the other community’s CC&Rs the manager manages. With that said, there are HOAs with unique covenant enforcement issues. For example, the author is familiar with an HOA that has very strict enforcement of their rules and regulations which have the following provisions:
- “No bird feeders or other animal feeding devices are allowed on a member’s Lot. Domestic pet feeding bowls or devices cannot be left on the exterior of the member’s home or garage.”
- “Feeding of ducks, geese, turtles, any non-domesticated animal on a member’s Lot, or from a member’s Lot, or on the common area is not allowed.”
- “The cleaning of fish on a member’s pier or Lot or on the HOA’s community pier or on the HOA common area is not allowed.”
- “Pets on a member’s Lot must be fenced in or on a leash at all times. Pets on a leash must be accompanied, at all times, by a person of at least 16 years of age on the member’s Lot or on the common area.”
- “Members with swimming pools and hot tubs are required to have swimming pool covers and kept in place when the swimming pool and hot tub are not in immediate use. “
“Members violating any of these rules and regulations are subject to a fine of $100 a day per violation.”
These rules and regulations may seem overbearing or even possibly Draconian. However, the first provision to this actual section of their rules and regulations is: “No feeding of alligators is allowed from a member’s Lot or pier, or from the community pier, or from the common area. Feeding, interacting with, or harassing alligators is a violation of local, state, and federal laws.” So, it is safe to assume this HOA has had alligator problems.
How does the association manager do a property inspection?
The association manager works for the HOA at the direction of the HOA’s board of directors. Thus, the association manager works closely with the HOA’s board of directors. This working relationship helps develop an association manager’s inspection process. Because at the end of the day, property inspections and the enforcement process are under the authority of the board of directors.
Most HOA boards bend over backward being reasonable with members who have violated the covenants. Unfortunately, the literally hundreds of thousands of violation enforcements that never appear on the evening news, go unnoticed and skew this reality. The board helps establish this inspection agenda. Because the association manager cannot be on the property twenty-four hours a day, the board and the association manager look to develop an inspection program that best suits the HOA. For example, if weekly trash pickup is on a Tuesday and per the rules and regulations, trashcans must be returned from the street by Thursday morning. The board and the manager then schedule property inspections on Thursday morning to specifically review for the compliance on this issue along with other covenant issues.
Our association managers utilize iPads and smartphones to perform property inspections. The technology allows the manager to drive the HOA with our management software that integrates with GPS to identify homes that may have covenant compliance issues. The software allows our manager to perform follow-up inspections because of a reminder/history function that tells of prior covenant issues at a particular address. A picture of the violation can be taken, and a violation letter is automatically printed and mailed.
Membership reporting covenant violations.
A critical aspect of covenant enforcement is the board of directors and the membership working together with the association manager in reporting covenant violations. The association manager cannot be everywhere all the time and catch every violation. Helping report violations is always appreciated and part of a member of the association’s responsibility as a member of the HOA.
Warning Letters?
The CC&Rs or possibly state statute could mandate this process. However, most association boards choose to begin covenant enforcement with a warning letter. Typically, a warning letter is to advise the HOA member that a particular issue is not in compliance with the covenants, and to correct the issue. Also, it could be a warning letter to not repeat the offense if the covenant violation were a one-time event, for example shooting off fireworks. This warning letter may note the provision in the violated rules and regulations and ask the member not to do this again. If the violation is of an active nature, such as the member has painted their front door an unapproved color, the letter would note the violation and specify an amount of time to correct the matter.
An important point is that the tone of the letter should not be overbearing. The HOA just wants compliance with the covenants and threatening tones do not go over well. A great many people are unaware they have even violated the covenants. The board and the manager should never want potentially the first letter a member ever receives from the HOA to be overbearing. The board and the association must never lose focus on the HOA’s true objective: which is every member’s compliance with the covenants.
Warning letters that require corrective action to be taken, should allow for a reasonable time to complete the corrective action. If the violation is not immediately correctable, a reasonable amount of time should be provided to correct the matter. Issues arise when corrective action cannot be taken because of external environmental issues, such as weather, or because of third-party involvement that cannot be controlled. Third-party involvement such as a specialized replacement mailbox that must be ordered or another HOA member’s property must be accessed to correct the violation. Additional time should be allowed if corrective action will take additional time because of external factors out of the control of the member in violation. In the event the violation results in litigation, the board being extremely reasonable with a member in violation of the CC&Rs may help the board’s position in front of the judge. While being reasonable may help a board’s position, being unreasonable almost always hurts the board’s position in court.
WDMC
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-Disclaimer: Since every state has different statutes or no statutes at all regarding HOAs, and every association’s declaration of covenants, conditions, and restrictions (CC&Rs) are different, any information provided within this blog is for non-legal and entertainment purposes only. For legal advice please consult an attorney who specializes in community association law.