Covenant Enforcement – Part Two 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”

A common question is how do I opt out of the HOA.  This was a much more common question 30 years before HOAs became so prevalent, but this question is still asked.  Usually, by someone who has already bought a home within an HOA.

The HOA’s CC&Rs, as noted previously in this blog, are the written rules, limitations, and restrictions on use, mutually agreed to (by virtue of purchasing a dwelling within a homeowner’s association) by all the owners of homes in a planned community or condominium complex.  An owner of a home within an HOA is automatically a member of the HOA.

This means a homeowner cannot just opt out of the homeowner’s association and the covenants, conditions, and restrictions.  The CC&Rs of the homeowner’s association are attached or travel with the deed or the owner’s home.  If a person owns a home in a homeowner association, they are subject to the CC&Rs and cannot elect to not abide by the CC&Rs.

Being a member of an HOA is akin to jury duty in a way.  If a person lives in a county and is called for jury duty, by law that person is required to present themselves for jury duty even if they do not wish to serve.  However, it is possibly easier to get out of jury duty.  The reluctant HOA member typically has three options if they feel dissatisfied with the covenants of their HOA.  First, sell their home and move.  Second, attempt to have the CC&Rs amended to allow for the particular matter to not be a violation any longer.  Third, fight the HOA in court and win.  Some will say there is a four method, eliminate the HOA.  To accomplish the dissolution of an HOA, typically 100% of the membership and 100% of any mortgage holders would have to approve to do something such as this.

The first option of moving is not made flippantly here.  Certain people are not well suited for living within an association with CC&Rs.  The author had an experience with an HOA member who he and his friends painted the front of his home purple with yellow trim before a big football game.  This member saw absolutely no issue with this color scheme and pointed out to the board of directors, “it is my home and property, and I will do as I please.”  The member may have felt emboldened because of his team’s victory that weekend, but he was not correct.  After a brief legal challenge, he returned the color of his home to the original colors.  Consequently, he had a neighbor who had been trying to sell their home, with the neighboring home having a paint scheme you could observe from outer space.  When it was pointed out to the member that his neighbors had an open house the weekend of the big game and his painting choices may have turned off prospective buyers.  His only remark was, “they should not have had an open house the weekend of the big game.”

The second option of amending the CC&Rs is a viable option if the point in question is unpopular with the entire membership.  Typically, most amendments to the CC&Rs require an affirmative vote of 67% of the membership to affect an amendment.  In certain situations, depending on what is being attempted to be amended, the membership approval percentage could be even higher: 75%, 90%, or even 100%.  Amendments and the amendment process are typically found in the final pages of the CC&Rs.  Even with the amendment process outlined here in the CC&Rs, in most cases, an attorney who specializes in homeowner association law will need to advise on the correct steps to be 100% in compliance with the CC&Rs and any state statutes.  The author had a member of an association attempt to have two amendments made to her CC&Rs.  The first amendment would be to allow for businesses to be operated out of homes in the HOA.  The second amendment being lifting the pet limitation, which was no member could have more than two dogs.  The background on this was this member had been caught by the police and human society running a puppy mill.  Close to thirty dogs had been taken away by the Human Society.  Surprisingly, out of the 200 home HOA, she got around a dozen people to agree to those two amendments.  Far from the 134 total members, she would have needed to ratify the amendments.

Third, the member can challenge the HOA in court about enforcement of the CC&Rs.  While there are numerous legal tactics on this approach, it is expensive and rarely successful.  The author is familiar with a case of another management company’s association client where a member had erected a $100,000 six-foot-high black powder-coated metal fence on the property line around his entire home.  This fence was not only in the back yard but in the front yard with an electric sliding gate across the driveway.  The story goes that this HOA member was from a foreign country where putting a fence such as this around their home was a sign of affluence and prestige.  This was an upscale neighborhood, and the fence’s erection greatly upset the membership.  This member’s profession was a high-paying profession and he reportedly spent more than $200,000 in legal fees.  Luck and an unbelievably benevolent judge ruled for the member and him keeping his fence.  This is even with the CC&Rs clearly stating “No metal fence will be erected on a Lot within the homeowners association…Fences must be approved by the Architectural Review Committee…Approved fences can only be erected on the Lot behind the home.”  The association reportedly spent as much on legal fees.  One can only imagine how this huge fence negatively affected the surrounding member’s property values.

On occasion, dissolving the HOA comes up with a member who is dissatisfied with the status quo.  Why this is such a difficult legal undertaking is that 100% of the membership must approve, along with 100% of any party who has a vested interest in the real property, for example, mortgage holders.  Anyone who attempted to dissolve their association without following the proper legal process would be exposing themselves personally to litigation from other members and any other interested parties.  There is at least one instance the author is aware of where an early set of CC&Rs, recorded in the 1960s, had an expiration date of the HOA.  These CC&Rs were obviously drafted by an inexperienced attorney.


William Douglas Management offers management services:

HOA Property Management Charlotte NC
HOA Property Management Raleigh NC
HOA Property Management Greenville SC
HOA Property Management Greensboro NC
HOA Property Management Charleston SC
HOA Property Management Columbia SC
HOA Property Management Myrtle Beach SC
HOA Property Management Mooresville NC
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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.

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