Covenant Enforcement – Part Three of a Six Part Series

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”

It is not uncommon for a member of an association to not be aware they are in violation of the CC&Rs.  So how are violations determined is a frequent question.  An estimated 75% of all violation letters originate from “grass needing to be cut, not picking up after a dog, not rolling in trashcan, and parking.” Roughly 20% of violation letters originate from “architecture” violations.  The remaining 5% come from other items found within the CC&Rs.

Grass needing to be cut, not picking up after a dog, and not rolling in a trashcan are self-evident violations, or most people would know these are violations.  Parking violations typically arise from people parking on the grass in front of their homes.  Architecture violations arise from the member altering the exterior of their dwelling or altering their yard.

The best way to avoid a compliance issue with the architecture requirements of the CC&Rs is for the member before altering anything, to run these alterations by the board of directors or the architecture review committee.  This applies to adding items to or altering the yard.  Such as adding a birdfeeder or plantings that can need approval or could not be allowed.  In townhome communities, because of the HOA’s maintenance responsibilities altering the landscaping takes on a different dimension than what is typically found within an HOA comprised of single-family homes.

Who determines what a violation is?

A common question is “who” determines what a violation is.  It is not “who” determines, it is more like “what” determines what a violation is.  The answer is the CC&Rs and prior practices or policies of the HOA.  Again, the CC&Rs are the basis or foundation of the requirements of living within an HOA.  The rules and regulations reasonably expand on this basis and authority.

Where the head-scratching comes in many times is why there are specific rules and regulations about a particular matter that is not allowed or heavily limited.  Reading an established HOA’s rules and regulations will many times leave the reader wondering ‘why in the world can’t I do (blank)?’ About 99 times out of 100 the reason that provision is in the rules and regulations is that some prior HOA member did this.  It could have been something going back 30 years and no one currently living within the HOA remembers the origin of that rule and regulation.

A great example of this type of head-scratching provision is the following from an age-restricted (55-plus) patio home HOA the author is familiar with: “no items whatsoever, with the exception of one (1) doormat can be located on a member’s front porch and walkway or sidewalk.” Because of the turnover in the community, no one could recall where this very specific rule came from.  The HOA secretary began researching the board’s meeting minutes and found that this rule was written in response to a prior member who had her entire 10-foot by 10-foot porch and walkway covered with flowerpots.  The prior board had counted 76 flowerpots of different sizes and colors along with different plantings.

The rules and regulations evolve to address problems that have arisen.  It would be impossible to anticipate every serious matter or violation that could possibly occur.  Nonetheless, the CC&Rs are the basis of the rules and regulations and could not conflict or overstep that authority.

What if something is not specifically noted as a violation in the CC&Rs or the Rules & Regulations?

Because it is impossible to predict what a member will do to stretch the bounds of the CC&Rs, most all CC&Rs will have a nuisance provision.  This is an example taken from a single-family home HOA.

“Section 5.4(a)   Nuisance.  No obnoxious, offensive, or unlawful activity shall be conducted within any Home or on any Lot, or on or about the Association’s Common Area, nor shall anything be done thereon or therein which may be or which may become an annoyance, nuisance, or danger to the other Lot Owners or possibly endanger the health and safety of any Lot Owner, Lot Owner family member, or guest.”

The nuisance clause is many times used as the basis when drawing up provisions for the rules and regulations.  For example, the rules and regulations in a condominium association have a provision that mandates that grills cannot be used on balconies.  CC&Rs many times do not specifically address violations such as this.  The drafter of the rules and regulations can base the rule on the wording in the nuisance provision, “unlawful activity” and “endanger the health and safety.” This is because using a grill on a balcony is unlawful and there is a possibility of a fire endangering the health and safety of others.

Where a board of directors may run into difficulty is if a judge feels their rule or regulation does not fall within the HOA’s “nuisance” clause.  For example, the board has tied their ban on commercial vehicles to their CC&R’s “nuisance” clause.  Enforcement in court could be challenging because a judge could deem saying a commercial vehicle a nuisance, is subjective.  Enforcement in court should be much easier if the nuisance is possibly burning the building down because a member was barbequing on their balcony.

When are the violations noted or determined?

Most potential violations are discovered or noted when the HOA’s association manager performs a property inspection.  The frequency of property inspections is dependent on the management agreement between the HOA and the management company.  When and how many property inspections can vary from one association to another.  Depending on the needs of an HOA, inspections can be weekly, monthly, or whatever frequency the HOA feels it needs.

Why are some violations noted and others not?

This can be a difficult question to answer.  It may be something as simple as the association manager missed the item on their inspection.  The violation may not have been present when the association manager did their inspection.  For example, the trashcan was already rolled in.  This type of question comes up when someone receives a warning letter, and they believe other member’s violations were overlooked.  In most cases, if there are other members with violations, they have been sent notices as well.


Copyright © 2021 William Douglas Management, Inc.

-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.

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