2020 has been a crazy year for associations. We have all been forced to deal with new realities – many of which still pose unanswered questions. How are we going to have meetings when the state says we can only have a limited amount of people? Are we going to be able to open the pools and other amenities? Are members going to be able to make their assessment payments, which are the lifeblood of the association?
Additionally, with people being forced to stay home for months on end and having little to occupy them, many have turned to maintenance and upgrades around their homes. For example, many owners have installed improvements to their homes such as landscaping, sheds, fences, and new paint. Most of these modifications complied with their associations’ governing documents and went through the proper channels to obtain approval prior to installation. Unfortunately, however, some owners either forgot, or chose not to obtain approval prior to installing improvements.
Many associations are struggling with the question of whether to enforce their covenants given the circumstances at hand. The short answer is yes. Associations need to enforce their governing documents. If a physical improvement has been constructed on a property, the association may only have one year to initiate a lawsuit in order to compel its removal. If the association fails to file the lawsuit within one year, the association may forever be banned from compelling the removal of the physical improvement.
It is important to remember that associations use covenants, rules, and architectural guidelines to maintain, preserve, enhance, and protect property values and assets of their communities. Covenants, rules, and architectural guidelines help identify expected behavior, limitations of both the owners and associations, and set a framework for the governance of the community.
When associations are enforcing their covenants and rules, there are several factors that will help lead to successful enforcement. First, associations should take every effort to achieve voluntary compliance with the rule or covenant. Providing reminders in newsletters and email blasts regarding various rules and the architectural review process is a helpful way to put compliance on the front burner of an owner’s mind.
Second, associations need to respond to and address violations in a timely manner. When an association consistently fails to enforce its restrictions, owners and residents start to believe that rules do not have to be followed. Additionally, just because past boards failed to properly enforce the covenants or rules, does not mean that the current board should follow in their footsteps.
Third, associations should review their rules and make sure such rules still meet the needs of the community. Community support is necessary for effective enforcement. This is not to say that everyone will like every rule, but if the rules are reasonable, and they benefit the majority of the community, enforcement will be much easier.
Finally, make sure that enforcement is performed in a consistent and uniform manner. If the Board adopts a rule, it must be uniformly and consistently applied to all violations. Associations need to be proactive when they are aware of likely conflicts. For example, a conflict that will likely arise this year is the upcoming election. If your association does not already have a political sign policy, you should adopt one prior to this year’s likely contentious election season.
Associations must also follow their covenant enforcement policies when violations are reported. Following the policy will result in uniform and consistent enforcement. Most policies require a warning or courtesy letter to be issued by the association before any other enforcement action is taken. This letter will put owners on notice of a violation and give them a limited amount of time to fix the problem before a monetary consequence is imposed. If the owner fails to correct the violation after a warning letter then the association can send a second letter, which can impose a fine after notice and opportunity for a hearing. An owner must receive notice and opportunity for a hearing before each and every fine is issued by the association.
If two to three fines have not resolved the issue, the next step is typically to turn the violation over to the association’s legal counsel. The association’s attorney will likely send a demand letter requiring compliance from the owner. If the owner still does not comply, the attorney will likely be forced to move forward with a lawsuit against the owner.
The litigation process typically takes six months to a year to obtain a judgment against the owner. Since the enforcement process may end up being fairly lengthy, it is common for other owners in the community to get frustrated that the violation has not been fixed immediately. Often times the association will be required to explain to its owners that there is no magic wand, and the association cannot physically force compliance until it has gone through the court system and obtained court order.
Because covenant enforcement can be a lengthy process, it is imperative, even during these COVID times, for associations to continue to enforce their governing documents. Failure to do so now can lead to many headaches down the road, and as the saying goes, “no good deed goes unpunished”, it is especially poignant for association boards.
If you would like more information on enforcing your governing documents during the COVID pandemic, please do not hesitate to contact an Altitude Community Law attorney today at 303.432.9999 or at [email protected].