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”
This is a common refrain from people who feel covenant enforcement is overblown. Some of the most outrageous covenant violations have happened in the nicest and most well-ran homeowner associations. However, if someone is in a well-run HOA without a recent major covenant violation, it is difficult to successfully argue the counterfactual nature of their remark. This blog concludes with examples the author has personally been involved in within HOAs.
What’s the big deal about someone leaving their trashcan out for an extra day or two?
A common misconception about covenant enforcement is that the board of directors and the association manager are being arbitrary in the enforcement. This perception can be a big challenge for boards of directors and association managers to explain satisfactorily. Unfortunately, the view that certain covenants are unnecessary or overly burdensome is a common sentiment. This can be a common sentiment even with members who are not the ones violating the covenants.
The problem with lackadaisical covenant enforcement is that it can lead to more serious violations. Granted, a crime analogy is not exactly an apples-to-apples comparison to covenant violations, but it helps explain why abiding by the CC&Rs is so important. The criminological theory of the “broken windows,” maintains that observable and unchecked criminal behavior begets even more escalating criminal behavior. The premise of this theory is that if low-level crimes can be reduced or eliminated, it reduces or even prevents more serious crimes from occurring.
Again, this is not saying covenant violations are akin to crimes, the analogy is to point out how matters can escalate and escalate exponentially. This brings up the trashcan not being returned from the street covenant violation. ‘So, what if one or two people leave their trashcans out for a day or two?’ The problem is inevitably more trashcans are left on the street. The author became involved with an HOA where this covenant had not been enforced effectively. As a result of this ineffective enforcement, some members were just leaving their trashcans in the street all the time.
It is a slippery slope when it comes to covenant enforcement. If a minor or so-called “petty” infraction is not enforced, at what level does the association begin to enforce the infraction. For example, changing the oil in an automobile. If this is “petty” to enforce, how about putting a car up on blocks and changing the brakes. If this is still “petty” how about repairing and painting a dented fender? If this is yet still “petty” how about jacking a car up and replacing the transmission. When does enforcing the covenants not become “petty?”
Where is the line drawn if the CC&Rs are “petty” regarding any one item? The author is a proud American and every time he sees an American flag, he feels proud to be an American. If the CC&Rs state only an American flag can be displayed, is it ok to hang one that has a blue line through it, the flag supporting law enforcement? How about if a member flies the American flag upside down? What if the covenants are being ignored and members are flying pineapple flags (The international flag of hospitality)? And then someone begins to fly a confederate flag? If a “pineapple” flag can be flown what is the argument that other flags cannot be flown?
What about the size of the flag? No one can have a problem with an extra-large American flag. The author had an association where a proud American put a thirty-foot flagpole in his front yard and began flying a bedsheet size American flag. The same size flags that are seen flying at gas stations. Fortunately, it was just a twin sheet-sized flag and not a king-sized sheet.
How about the enforcement cases that defy logic, and no one could have possibly predicted and written into the CC&Rs? William Douglas Management represented an upscale condominium association that had common hallways with entrances to the individual member’s condominium units. One member, obviously without board approval, had their entrance door from the common hallway replaced with a Dutch door. For those not familiar with the term, a Dutch door is a door divided in half that allows for the bottom of the door to be closed, while allowing the top portion of the door to remain open. Members would walk down the hallway and when passing this unit, could see into the living room of this member’s condominium unit. The case made it all the way to the court of appeals before a ruling in the favor of the homeowner association was reached. The best attorney in the world drafting CC&Rs could not have specifically anticipated someone doing something such as this.
Several years ago, we represented an HOA where a member held a birthday party for his daughter who was turning sixteen. This was not the typical run-of-the-mill child’s birthday party. As the author understands the back story to be, the sixteen-year-old’s parents had recently gone through a less than amicable divorce. The supposedly aggrieved person in the divorce who happened to be a member of the HOA was determined to throw a party that his daughter, and especially his former wife, would never forget. There is no indication that the member purposely wished for the entire membership to never forget this party either, but that is how it worked out.
The short version of the “party” covenant violation is that reportedly 150 guests showed up along with an equal number of uninvited guests. By all estimates, there were more than 300 people in attendance. And who could blame anyone for crashing an event such as this? There was an extremely loud rock band set up in the backyard next to the swimming pool, which was full of apparently intoxicated guests, invited and uninvited. There was a rap group set up in the front yard that played after the rock band’s set ended, and they were just as loud, if not louder. There was also an elephant that was providing party-goers rides around the homeowner association. It seems that the birthday girl just loved elephants. And if all that was not enough, there was a professional firework show after the rap artist finally finished up. There were no complaints about the elephant rides around the HOA, just complaints about 300 guests parking in other HOA member’s front yards, loud music that went on and on until the police threatened to arrest the sixteen-year-old’s father if they had to come back out. Interestingly the fireworks seemed to draw the most ire from the membership, and the fireworks show, proportionally as compared to everything else going on that day, only lasted ten minutes. The good news is that the birthday girl was an only child.
We manage an HOA where the homes are on one-acre lots or larger. Most of the lots have stands of trees between them, partially down the property lines between homes. These serve as a buffer between neighboring homes. This HOA had a great board of directors who insisted on effective and consistent covenant enforcement. A new HOA member, shortly after buying his home, submitted an ARC request to build a treehouse for his grandchildren. The HOA’s CC&Rs are very clear about secondary structures on member’s lots. And even if the CC&Rs were not very clear about what could and could not be built, a 200 square foot air-conditioned treehouse built in the stand of buffer trees between the lots would not be allowed. The treehouse, per the member submitting the ARC request, needed to be situated on the property line in the tree stand to afford the best view of the lake from the treehouse. When the ARC request was denied, the HOA member assumed the idiom “It’s better to ask for forgiveness than permission,” and built the treehouse anyway. Before this matter was resolved and in compliance with the CC&Rs, it cost the association and that member many thousands of dollars in legal fees.
In another association we manage that had a long history of very few covenant violations, there was a sudden turn of events. Suddenly, one Friday afternoon, a member pulled into his driveway pulling a 50-foot sailboat. The sailboat had seen its better days and needed a great deal of work. So, the member, over the course of that weekend, took the sailboat completely apart. This could be determined because the member had neatly stacked and organized all the boat’s parts in the front yard of his home. What made this covenant violation even more conspicuous was the fact that this member’s home was the second home on the left upon entering the gated community.
Of these last four extreme examples of covenant violations, besides all four being flagrant, they have one other factor in common. The member or the perpetrator of the violation had absolutely no problem with what they had done. The thought of it negatively affecting others within the HOA apparently never crossed their minds. Why would anyone have a problem with someone restoring a beautiful sailboat in their front yard?
The author draws the analogy of a vacation he took in a South American Country several years ago. The author while riding in a taxi that was being driven by a man who believed he was in a race with the devil on a dirt road and the driver was driving more than 80 miles an hour. When the author finally, successfully communicated with the taxi driver about slowing down, the taxi driver responded, “don’t worry they don’t write tickets here, they have bigger things to deal with.” It hit the author by what the driver meant, every home he had seen during his stay had bars on the windows and doors. Most homes had a high wall around them as well. The bars and walls were not there for decoration, and the police here obviously had more pressing issues than speeding taxis. The author remembers on his return to the United States being glad that the police here did have time to concern themselves with speeding.
The reality of covenant enforcement, unbeknownst to many, is the HOA is continually fighting the extreme, by enforcing the seemingly small issues to prevent these small issues from developing into big issues. Unfortunately, unless a covenant violation turns into an extreme situation such as the examples noted in this series, some in the membership may casually say “what’s the harm?” Again, it is a slippery slope that usually begins with small covenant infractions.
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.