Covenant Discussion - Regarding Powers

I find that the experience and opinions of those on this website to be vast and thought it would be interesting to see the thoughts on covenants and restrictions, such as interpretation or legality. I would think that such discussion could be a useful tool for those in associations (particularly board members) who may be seeking to revitalize or draft new C&Rs. (I personally enjoy looking at documentation like C&Rs anyway)

I figured I would just post a C&R (or part of one) that in my opinion is worded poorly and see what you all have to say about it. Sounds fun?

The following covenant is for a neighborhood consisting of single family houses on individual lots.

Article - Functions of An Association

Section - Services

The Association shall have the following power and responsibilities:

The Association may also provide exterior maintenance upon any Dwelling or Lot which, in the association's opinion, requires such maintenance because said Dwelling or Lot is being maintained in a manner inconsistent with the Community-Wide-Standard of the Properties. The Association shall notify the Owner in writing, specifying the nature of the condition to be corrected, and if the Owner has not corrected the condition within fifteen (15) days after the date of said Notice, the Association (after approval of a majority of the Board) may correct such conditions. Said maintenance shall include but not be limited to painting, repairs, replacement and maintenance of roofs, gutters, maintenance authorized by this Article, the Association, through its duly authorized agents or employees, shall have the right, after reasonable notice to the Owner, to enter upon any Lot located in XXXXXXXXX which is subject to this Declaration at reasonable hours on any day; provided however, The Association shall have the right of entry without notice if necessary to correct an emergency situation. The cost of such maintenance shall be assessed against the Lot upon which such maintenance is performed and shall be collected as an Assessment against the Lot.

I like to break things down:

The Association shall have the following power and responsibilities:

The Association may also provide exterior maintenance upon any Dwelling or Lot which, in the association's opinion, requires such maintenance because said Dwelling or Lot is being maintained in a manner inconsistent with the Community-Wide-Standard of the Properties.

Tricky part is Community-Wide-Standard. I do not think it can really be tightly defined/clarified thus will alwys be subjective but one knows it when they see it so I say do not try and define it any tighter.

The Association shall notify the Owner in writing, specifying the nature of the condition to be corrected, and if the Owner has not corrected the condition within fifteen (15) days after the date of said Notice, the Association (after approval of a majority of the Board) may correct such conditions.

Clear enough and while 15 days is a short time the issue will be the owner disagreeing an/or scheduling, but the clock has to start sometime. I would expect a BOD to work with a cooperative owner, but again, the clock has to start some time. I have no issues with the 15 days.

Said maintenance shall include but not be limited to painting, repairs, replacement and maintenance of roofs, gutters, maintenance authorized by this Article, the Association, through its duly authorized agents or employees, shall have the right, after reasonable notice to the Owner, to enter upon any Lot located in XXXXXXXXX which is subject to this Declaration at reasonable hours on any day; provided however, The Association shall have the right of entry without notice if necessary to correct an emergency situation.

Seems clear enough to me but I can hear someone playing outhouse lawyer saying it is trespasing, I am going to sue, people come on my property I am calling the police, I am getting my gun, etc. but that type is going to fight it anyway they can no matter the wording.

If and when it was scheduled to happen, I would back it up with law enforcement being there to prevent any trouble.

The cost of such maintenance shall be assessed against the Lot upon which such maintenance is performed and shall be collected as an Assessment against the Lot

Seems clear enough to me.

All of the above if fraught with issues but I think more wording, definitions, allege clarifications, might just make it messier.

Hope this helps.

One big ooops on my part.

Who is the Association? Not to split hairs but....

A couple things. These C&Rs define the Association as the non-profit corporation or its successors.

Community-wide standard is defined as "the standard of conduct, maintenance, or other activity generally prevailing throughout the Properties. Such standard may be more specifically determined by the Board and the Architectural Review Committee.

I would see some issues with this covenant and I will break down my interpretations:

The Association may also provide exterior maintenance upon any Dwelling or Lot which, in the association's opinion, requires such maintenance because said Dwelling or Lot is being maintained in a manner inconsistent with the Community-Wide-Standard of the Properties.

I find the idea of the Association performing maintenance on an individual dwelling or lot a bit of an over reach, especially when considering the "Community-Wide-Standard" is extremely vague. Although I assume the C-W-S can be codified in documents such as through the ARC, I think that by not outlining any specific standards in the covenants runs the risks of standards being hijacked by a select few and changed on a whim.

I would think that rather the association get involved performing maintenance and billing the neighbor, a combination of local code enforcement and more specific covenants that outline the restrictions more carefully so that penalties can be properly levied and in the case of further action, the courts could compel a homeowner to comply.

The Association shall notify the Owner in writing, specifying the nature of the condition to be corrected, and if the Owner has not corrected the condition within fifteen (15) days after the date of said Notice, the Association (after approval of a majority of the Board) may correct such conditions. Said maintenance shall include but not be limited to painting, repairs, replacement and maintenance of roofs, gutters, maintenance authorized by this Article,

Again, I would disagree with the Association getting involved in the modification of someone's property, but I think the time frame not only seems rather short (especially for something like a roof) but allows for the potential for major conflicts to arise should the homeowner disagree or pursue different course of actions, such as a lawsuit.

the Association, through its duly authorized agents or employees, shall have the right, after reasonable notice to the Owner, to enter upon any Lot located in XXXXXXXXX which is subject to this Declaration at reasonable hours on any day;


I am curious as to the potential liability involving an Association hiring people to enter a Lot and make the deemed necessary changes. What if a worker is to get injured on the homeowner's property. Would the homeowner's insurance policy cover the action or would the association, and if the association, would the association include any costs associated with that injury with their penalty against the homeowner?

provided however, The Association shall have the right of entry without notice if necessary to correct an emergency situation. The cost of such maintenance shall be assessed against the Lot upon which such maintenance is performed and shall be collected as an Assessment against the Lot.

This is probably the section I have the biggest issue with. "Emergency situation" is not defined and the association seems to be able to grant itself the right to do whatever they want without notice to do whatever they deem necessary. Now I imagine any reasonable court would rule against an association if they were to use this power to make silly changes, such as make major changes simply because the board changed their mind and felt meeting the C-W-S was an emergency, but it costs money to fight something like this and I think that in the wrong hands this could be abused greatly.

Kevin,

I still see no big problem with the passage that you originally quoted. Yes, it may be a bit extreme but you had notice of this provision when you purchased the property by virtue of the fact that it is stated in black-and-white in the declaration.

But there is a problem, at least in my mind, with the provisions for the Community-Wide-Standards. These are alluded to in the declaration but not spelled out there. In fact, the declaration says that the Board and the Architectural Review Committee will decide what these standards are. This means that you were buying the proverbial pig-in-a-poke.

If you were to end up in court over this, the HOA’s attorney would likely argue that you agreed to these terms by purchasing property subject to the declaration where the terms are stated. I am not so sure how that argument would fare in court. I know of a Colorado appellate court decision that held that vague terms are unenforceable and an Arizona Court of Appeals opinion that restrictions cannot be imposed outside of the recorded declaration.