Self-Help; Maybe Not the Best Remedy
Every so often we hear of something that makes us want to shake our heads and murmur to ourselves “WHAT WERE THEY THINKING?” (Okay – maybe more of a shout than a murmur, but we ask ourselves nevertheless). This happened to me recently when I read about a Texas Court of Appeals decision in which the homeowners association (Happy Hide-A –Way Civic Club) became upset with how some owners were (really, were not) maintaining their home. The association, relying on the language in its governing documents, decided that it was entitled to demolish the owners’ home, and proceeded to do just that.
What is amazing to me is that the association did not bother to obtain a court order authorizing it to take that action. Rather, its board of directors decided that the authority in its governing document gave it that power. The community’s deed restrictions provided that
The owners of all tracts shall, at all times, keep all weeds and grass thereon cut in a sanitary, healthful and attractive manner and shall in no event use any tract for storage of material and equipment except for normal residential requirements. In the event of default on the part of the owner or occupant of any tract in observing the above requirements or any of them, Grantor may without liability to the owner or occupant for trespassing or otherwise, enter upon said tract and cut or cause to be cut, such weeds and grass and remove or cause to be removed, such garbage, trash, rubbish and so on, so as to place said tract in a neat, attractive, healthful and sanitary condition and the occupant or owner of such tract, shall owe for the cost of such work. The owner or occupant, as the case may be, agrees by the purchase or occupation of any tract to pay such costs immediately upon notice.
Once the association demolished the owners’ home, it then asserted a lien on the property seeking reimbursement for the cost of the demolition, as well as fines totaling in excess of $80,000. The Association apparently took the position that the ability to remove “garbage, trash, rubbish and so on” applied to the home.
Without going into all of the details, suffice it to say that the Texas Court of Appeals disagreed with the association. The court also noted that the association failed to comply with Texas statutes that required notice and opportunity for a hearing before enforcement action could be taken.
We often get requests from association clients about their ability to exercise self-help as a remedy. In other words, they don’t want to have to go to court to obtain a court order authorizing them to do what they want to do. While in some cases, self-help is an acceptable remedy, generally courts frown on the exercise of self-help. They view it as vigilante justice which is generally discouraged. If you are thinking about self-help, you should probably consult with your legal counsel before taking such steps. Without the proper authority, and exercised in the right way, self-help can lead to much greater concerns and liability than dealing with the problem in other ways. Make sure you don’t put your association in one of those “WHAT WERE THEY THINKING” situations.