The Tennessee Court of Appeals in the case of 4215 Harding Road Homeowners Association v. Harris, 2011 WL 145915 (Tenn.Ct.App.2011) recently ruled that a homeowners association had the right to permanently force a resident out of her condominium unit as a result of hoarding activity leading to unsanitary conditions within the unit and a resulting offensive odor in the common areas.
Prior to the filing of its lawsuit, the association attempted to remedy the situation by facilitating the cleanup of the unit. A bio-hazard cleanup company was brought in and, during their twenty-four hours of work, set off odor bombs and removed three commercial dumpsters filled with debris. The property manager personally assisted by washing thirty-eight loads of laundry and other residents helped by making her dinner and providing accommodations until the cleanup was complete. The unit was also painted and the curtains, covered in black, furry and odiferous mold, peeled off the walls and windows. Less than five months after the cleanup, residents complained again about odors emanating from the unit and into the common areas. The association attempted to work with the owner to cleanup the unit but she ultimately refused to comply with the association’s demands. To make matters worse, the homeowner commenced interfering with the property manager’s job duties. After an attorney demand letter was sent to her requesting that she cease her behavior, the homeowner was observed sitting in the association lobby wearing a t-shirt with the words "I will not cease and desist".
The association subsequently filed a lawsuit requesting damages, for an injunction requiring that the homeowner abate the odor, and further requesting that her right to occupy and use her unit be terminated. Interestingly, the association covenants permitted it to terminate the ownership rights of an owner who continued to violate the restrictive covenants after being provided a written notice of the violation. The Court of Appeals upheld the trial court’s ruling ordering the judicial sale of the unit as a result of the covenant violations. Specifically, the Court found that the sale was justified in light of the homeowner’s refusal to acknowlege the violation, the association’s repeated efforts for over a year to remedy the problem, the continued failure by the homeowner to cure the violation, the gravity of the nuisance and its impact on the other homeowners.
This extreme case emphasizes the importance of enforcing association covenants to protect the health, safety and welfare of other homeowners. It also raises questions as to whether Colorado courts would permit the removal of a homeowner from the community if similar covenants were in place.
Associations and their managers should continue to informally attempt to resolve covenant violations with their homeowners to the extent practicable. If violations persist, it is recommended that the association consult with its attorney to determine an appropriate course of action which, in many cases, will be dictated by the covenants.