Look Out for Sneaky Provisions in your Declarations that Bite

Violation EnforcementTrying to keep communities looking good is one of the most important goals for homeowners associations; in fact, it is one of the main reasons people purchase homes in HOAs.  Unfortunately, enforcing governing documents is not an easy task and there are oftentimes provisions in the governing documents that make it even tougher.  To assist you with your community’s covenant enforcement efforts, below is a list of the problematic provisions that may pop up and throw monkey wrenches into your enforcement efforts:   
1.    Self-Help.   Some documents contain provisions allowing associations to utilize self-help.  Specifically, these are provisions allowing an association to take action and remedy a violation if an owner fails to do so.  If your declaration contains such a provision, make sure to read it over very carefully to determine if any type of notice or opportunity for hearing is required before the association commences such self-help remedies.

However, some declarations take the opposite approach. Keep your eyes peeled for “Waiver of Summary Abatement” provisions that may be contained in your declaration. These provisions typically read as follows:  “Declarant and the association each waive the right to use summary abatement or similar means to enforce the restrictions herein contained.  Judicial proceedings must be instituted before any items of construction can be altered or demolished.”  If your declaration contains such a provision, the association cannot utilize self-help and must use legal action to enforce its covenants.

2.    Timeline to Enforce.  Some documents require an association to take action against an owner within one year of the installation of an improvement that is in violation of the governing documents.   Such provisions mimic the Planned Community Act.  On the other hand, some documents require a lawsuit be commenced prior to completion of the installation.  If your declaration contains this requirement and no lawsuit to stop the construction has been commenced prior to the completion thereof, the association will lose its right to enforce that particular violation and the improvement will be deemed in compliance with the documents by a court.

Therefore, make sure to review your declaration and ensure that no such provision is contained there.  If you do find your covenants contain such requirement, you should contact the association’s legal counsel to discuss a limited amendment deleting such provision.

3.    Use of Recreational Facilities and Right to Vote.  Some documents allow associations to prohibit the use of recreational facilities, or other common elements, when owners are in violation of the association’s rules, covenants, etc.  This is a useful provision for communities that have recreational facilities such as swimming pools and the like, which allows such communities to force non-compliant owners to cure their violations before being authorized to use such facilities.

However, be careful with these provisions because many documents place strict limitations on this enforcement technique.  Such limitations may pertain to a maximum length of time for which privileges may be suspended.  Others may require notice and opportunity for hearing to suspension.  So make sure you are familiar with the provisions in your declaration prior to utilizing this enforcement method.

It is difficult to enforce governing documents for a community, but this task may be made easier by a careful review of the provisions in your declaration and a determination whether any problematic requirements exist.  Otherwise one of these provisions might sneak up and bite you when all you are trying to do is make your community look nice.  If you find a provision that is too extreme, contact legal counsel to discuss your options.

By: Debra J. Oppenheimer, Esq.