Enforcing neglected provisions fairly

Remedies for long-ignored violations

newsQ. Our HOA has some very specific restrictions. For instance, one requires owners to screen trash containers behind a barrier. Over the last several years, many of these restrictions have not been enforced. The current board would like to begin an enforcement program. We would only require a correction of a violation if we determined that it could be corrected at reasonable cost and limited inconvenience, and we’d give the property owner plenty of time. Is there a statute of limitations that would “grandfather” a past violation and prohibit the HOA from enforcing it? Does the tolerance of violations over many years prohibit the HOA from forbidding future violations of a similar kind?

A. This is common in planned communities. Sometimes a developer will ignore violations by owners, or approve structures that are in violation of the restrictions, in an attempt to keep owners happy while the developer is still trying to sell lots or homes.

When the HOA is turned over to the homeowners, the new board is faced with the problem you describe. Other times, owner-controlled boards ignore violations of the restrictions for various reasons.

Many communities have a provision in their Declaration of Covenants, Conditions, and Restrictions (CCRs) that specifically says that past failures by the HOA to enforce the CCRs does not constitute a waiver of the HOA’s right to enforce them in the future.

If your CCRs have such a provision, the HOA can still enforce the restrictions even if they’ve been ignored for years.

Even if your CCRs do not have such a provision, the statute of limitations for addressing a violation of the CCRs is six years, or 10 years if the Declaration was signed “under seal.”

Regardless of the HOA’s legal right to address violations that have been ignored for many years, I think your approach is the right one: Be reasonable, give homeowners adequate time to address the violations, and use the legal enforcement tools (fines and lawsuits) only as a last resort. Enforcement of the restrictions should be fair, uniform and consistent.

Charlotte attorney Michael Hunter focuses on community and condominium association law for the firm of Horack Talley.

Author: Charlotte Observer

“Ask The Experts” Articles have been Reprinted with permission from the Charlotte Observer

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