CC&R enforcement

Started by WilliamT • 10 replies • 2072 views

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WilliamT (Arizona)
Posts: 489

Posted:

I've been both stating and hearing that all covenants of the CC&R's shall be enforced and enforced equally.

Now I read this in our CC&R's which sounds a little different, and the Planned Community laws nor the Non-profit corporation laws mention this.

"Enforcement, The Association, or any Owner, shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants. reservations..."
"... Failure of the Association or by any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter."

This doesn't say the Association "shall enforce". It says it has the "right to enforce", and if it doesn't do it now, it is not a waiver of the right, so it can be enforced later.

Does anyone have any law reference that I haven't seen that overrides this shall have the right and provides they shall enforce?

RogerB (Colorado)
Posts: 5,067

Posted:

Posted By WilliamT on 02/05/2007 6:18 PM
"Enforcement, The Association, or any Owner, shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants. reservations..."
"... Failure of the Association or by any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter."

William, the first sentence provides the right to enforce.
The second sentence give the right to do so if there is failure to enforce a previous violation. In other words if there is a violation which is not enforced that violation can be enforced in the furture. For example, suppose a previous Board failed to enforce certain restrictions for whatever reasons; then you get on the Board and want to start enforcement. The second statement gives the right to do so.

WilliamT (Arizona)
Posts: 489

Posted:

Thanks Roger, the others and I are pretty much in agreement with that interpretation.

What we are not certain about now, is that I'm under the impression that we are required to enforce all of the CC&R's all the time, and that paragraph is telling us that if we happen to miss something that we don't lose the right to enforce it.

The interpretation of this by previous boards is that they can take one covenant and decide to not enforce that. So, for years the parking covenant wasn't enforced. This is the issue we're working on now.

I'm wanting to make sure that if I tell my fellow board members that we're obligated to enforce all the covenants that this is correct, and I can't find anything that states that.

RogerB (Colorado)
Posts: 5,067

Posted:

You are correct Wiilliam. The Board is supposed to enforce all the restrictions all the time. If a past Board failed to enforce a parking restriction they could have been held accountable. If the current Board fails to enforce any restriction they can be held accountable.

I would presume your By-laws require this by using the word SHALL under the powers and duties of the Board. Following is an example:
----------------------------------------------------------------------
ARTICLE VII POWERS AND DUTIES OF THE BOARD

The Board of Directors shall act in all instances on behalf of the Association, except as provided in the Nonprofit Corporation Act, the Colorado Common Interest Ownership Act, the Declaration, or these Bylaws. The Board shall have, subject to the limitations contained in these said documents, the powers and duties necessary for the administration of the affairs of the Association, including the following powers and duties:
a) administer and enforce the covenants, conditions, restrictions, easements, uses, limitations, obligations and all other provisions as set forth in the Nonprofit Corporation Act, the Colorado Common Interest Ownership Act, the Declaration, these Bylaws, and the Rules and Regulations;

RebeccaM1 (Florida)
Posts: 43

Posted:

I am concerned with this as well. I have recently taken over as Manager for a 112 unit HOA. One unit owner in particular had a tiki bar and deck built outside his townhome some years ago, under different management and board. He did not receive board approval. He was not challenged by the Board at that time and the general feeling now is that it has been allowed for too long now to make him remove it. My fear is that the current Board may run into difficulty enforcing the restriction on any unit owner in the future who wishes to do something similar, due to their lack of action in this case.

JasonL (Illinois)
Posts: 10

Posted:

"Enforcement, The Association, or any Owner, shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants. reservations..."

With this being stated, does any lot owner have the authority to enforce any violations by personaly taking another lot owner to court to have the violation corected? If so, what authority does the association actually have when it comes to managing and controling such violations. It just seems to me, that it would be the associations responsibility to enforce, and not an individual lot owner.

BarbaraS (New Mexico)
Posts: 49

Posted:

Another point - this in line with enforcement/non-enforcement. Our HOA is in the process of revising our outdated covenants. One of the original covenants restricts the number of dogs and cats (hard to determine number of cats without invasion of privacy). Two owners now have two dogs each. One owner (new) said she was not given the covenants when she bought. The other owner knew about the covenant. The covenant was discussed at our annual meeting along with other revisions which might be less restrictive and more enforceable. One member suggested "grandfathering" in these two owners, should the original covenant stand. Is there a problem with this?

JM2 (Oregon)
Posts: 439

Posted:

Regarding the parking restriction enforcement, it would be advisable to send a letter to all owners/residents to let them know that the parking restriction will be enforced, and how it will be enforced (such as towing). Make sure that any parking space lines are clearly marked, as well as No Parking areas. Let the owners/residents know when it will be enforced (typically two week's or 10 days notice from the date of mailing) and then follow up with enforcement. Be sure to send a copy to residents who rent, as well as their owners. Verify in your rules, whether a fine is assessed against a lot/unit owner (if so, send violation notice to owner and copy the renter) or against the vehicle itself (typical if you tow). Talk to several towing companies, if you do tow, and set up a contract with them. You may want to set up a procedure where they need to get authorization from either the HOA manager or a board member prior to towing, and take a photo of the vehicle prior to towing.

Regarding the Tiki Bar, you might want to consult with the Association's attorney on that issue, since the amount of time that has passed may make enforcement realtively impossible (what will a judge rule on it?). However, if Architectural Control has been lax, you can ask everybody to apply for any changes that have been made. If there is a fuss about the tiki bar, you may be able to "grandfather" it in, with the provision that it is removed prior to sale - a conditional approval of it.

J. Patrick Moore, CMCA
Compliance Coordinator
Forest Heights Homeowners Association
Portland, Oregon

RebeccaM1 (Florida)
Posts: 43

Posted:

Thank you JM! My biggest concern with the Tiki Bar is that it will present a problem with the next owner of this unit. No one really cares about it right now, but I don't want it to become an assumed part of the unit owner's property because it is most definately on common ground. I will take your suggestion up with my board.

WilliamT (Arizona)
Posts: 489

Posted:

Posted By JasonL on 02/06/2007 8:17 AM

"Enforcement, The Association, or any Owner, shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants. reservations..."

With this being stated, does any lot owner have the authority to enforce any violations by personaly taking another lot owner to court to have the violation corected? If so, what authority does the association actually have when it comes to managing and controling such violations. It just seems to me, that it would be the associations responsibility to enforce, and not an individual lot owner.

I think what it's saying is that the Association can take legal action to enforce complaince. If the Association isn't enforcing then an Owner can take legal action to force the boar to enforce them.

WilliamT (Arizona)
Posts: 489

Posted:

Posted By RogerB on 02/06/2007 6:43 AM

You are correct Wiilliam. The Board is supposed to enforce all the restrictions all the time. If a past Board failed to enforce a parking restriction they could have been held accountable. If the current Board fails to enforce any restriction they can be held accountable.

I would presume your By-laws require this by using the word SHALL under the powers and duties of the Board. Following is an example:
----------------------------------------------------------------------
ARTICLE VII POWERS AND DUTIES OF THE BOARD

The Board of Directors shall act in all instances on behalf of the Association, except as provided in the Nonprofit Corporation Act, the Colorado Common Interest Ownership Act, the Declaration, or these Bylaws. The Board shall have, subject to the limitations contained in these said documents, the powers and duties necessary for the administration of the affairs of the Association, including the following powers and duties:
a) administer and enforce the covenants, conditions, restrictions, easements, uses, limitations, obligations and all other provisions as set forth in the Nonprofit Corporation Act, the Colorado Common Interest Ownership Act, the Declaration, these Bylaws, and the Rules and Regulations;

Roger, our Bylaws are 20 years old and doesn't have that specific of a section. We hav this:

Powers. The BOD shall have power to:

(a) adopt and publish rules and regulations governing menbers and their guests thereon, and any other matters contemplated by the Declaration or Articles and to establish penalties for the infraction thereof;
(c) exerise for the Association all powers, duties and authority vested in, or delegated to, this Association and not reserved to the membership by other provisions of these byla4ws, the Articles or the Declaratoin.

In the CC&R's we have this:
Rights, Powers and Duties. The Association shall be a nonprofit Arizona corporation charged with the duties and invested with the powers prescribed by law and set forth in the Articles, bylaws, and this declaration together with such reights, powers and duties as may be reasonable necessary to effectuate the objectives and puuposes of the Association as set forth in this declaration.

Nothing seems to directly state that we shall enforce the CC&R's. I still believe we are obligated to enforce them all, even without the specific language.

Thanks

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