Ahhh, spring, when a young lawyer’s fancy turns to thoughts of…covenant enforcement.
I love covenant enforcement cases. In most situations, the owner who violated the documents has no defense and it’s up to the association to make sure the owner complies with the documents that govern his property. Sometimes it can be a headache, but it’s the Association’s legal duty to enforce these documents.
Not in your backyard? Enforce your covenants!
Some thoughts from your lawyer’s perspective to help ensure a successful covenant enforcement action:
1) Follow your policy. If your association has not yet enacted an enforcement policy, it needs to do so – yesterday. Make sure the policy provides for notice, the opportunity for a hearing, a fine schedule, and a fair and impartial factfinding process. Read it carefully and send the required notices out on the proper schedule.
2) Be diligent. The association can lose its power to commence legal proceedings if a covenant violation is allowed to remain in place for too long. The minute you see a violation, start your enforcement procedures.
3) Be consistent. We are often faced with claims that the association is unevenly enforcing restrictions, or is otherwise treating the defendant unfairly. Make sure that you treat similarly-situated individuals in the same manner, recognizing that almost every covenant enforcement case is unique. Don’t play favorites!
4) Follow your documents. We can’t emphasize this enough. If your documents prohibit certain actions or improvements, don’t allow them simply because you don’t think it’s a big deal! Other owners purchased their properties in reliance that the covenants would be enforced. You open the association up to liability if you enforce loosely.
5) Give your attorneys proper notice. We see a lot of covenant enforcement proceedings in spring because an owner violated the covenants with a spring improvement the preceding year, and the association and its management company have spent the year trying to obtain compliance without resorting to a lawsuit. We agree that lawsuits should be avoided, but please give your attorneys sufficient notice to prepare a suit when one is needed! I love covenant enforcement, but I hate staying late on a beautiful Friday night to prepare last minute pleadings!
In a perfect world everyone would read their documents and follow the rules, but this isn’t a perfect world. Following these steps will help make your covenant enforcement proceedings just a little bit closer to perfect.