If an Association can use monetary penalties to comply enforcment, should Associations utilize the courts or just not enforce all covenants?

Recently, two legal cases in Virginia, and their associated opinion papers, have had (or should have had) VA Associations reviewing their governing documents to determine what options are available to use for enforcement. The two cases I speak of are:

Fairfax County Redevelopment and Housing Authority v. Shadowood Condominium Association, et al.
and
Sarnir R. Farran, et al. v. Olde Belhaven Towne Owners Association

Since these opinions were not published, under the Rules of Supreme Court of Virginia (scroll down to page 328), they are not binding on any future case. However, judges may take them under advisement and give them as much weight as they wish.

I have been reviewing and writing a report for my Board on the issue. My review discovered that although we can apply monetary penalties for infractions of rules on the common areas, we may not apply monetary penalties for infractions of the Covenants or anything addressed in the CC&Rs.

I am curious what your replies and opinions are to the following questions:

1) Does your CC&Rs authorize monetary penalties for covenant infractions?

2) Regardless of the answer to #1, if you did not have the capability for monetary penalties should the Association choose to enforce all covenants through the courts or should they exercise their authority and only enforce some of the covenants?

Examples of covenants for question two:

personal property (bikes, etc.) left outside.
Building xyz without prior authorization.
Commercial Vehicles
Trash cans placed out too early or taken back too late.
Parking (other than commercial vehicles)
Home businesses.

Tim,

My residence is covered by CC&R's but no association. Thus, there is no authority to enforce or fine except through court actions and I am unaware of anyone ever having done so. The neighborhood was developed about 40 years ago and I have lived here less than 2 years, so it is possible that one owner took another to court sometime in the past four decades.

It's funny, though, that without an association to pester us we somehow have few of the problems that you mention. I see few "commercial vehicles" in the area, no parking problems at all, no evidence of anyone running a business from their home. Since the community was built out years ago, construction is not a problem. We have a few people who leave some personal property outside, but things of value, such as bicycles, have a habit of disappearing so it is not really a big problem.

Trash cans being left at the curb is not a big problem either. The city provides us with two 90-gallon plastic barrels on wheels; one for garbage and one for recycling. They are pretty easy to wheel out to the curb on Thursday night and easy to bring back in after the early Friday morning pickup. The only problems we have is that sometimes people take off for a long weekend and the barrels sit at the curb until they return. Yeah, we could make a complaint to the city but why bother? By the time the city officials get here the barrels will be off the curb and we are talking about a small number of households that do this once in a while. My next door neighbors have been guilty of this once or twice and I solved the problem by putting their barrels away for them. I found that being a good neighbor was no more difficult than being a real prick.

My "ranch" property is also subject to CC&R's and does have an association. I just checked my CC&R's for that property and found no authority to fine but did find that the association is authorized to enter upon a parcel and remedy a violation at the owner's expense. The list of prohibited activities and structures is extremely short. When I was on the board we got complaints quite often but our board is pretty lazy and they normally referred the party to county zoning. I did find that when the developer was in control he did on one ocassion file a lien against one owner for a violation. I do not believe that the association had the authority to do that, but that was years ago and the accused party has since died.

Now to the second part of your question.

I absolutely feel that it is imperitive that every association file a complaint in the courts to remedy each and every infraction of the CC&R's, no matter how petty. Clog the courts with applications for injunctions because Joe left his trash cans on the curb too long and Billy didn't put away his bike. You will very quickly learn the meaning of the Latin phrase de minimis non curat lex ("The law does not concern itself with trifles"). If you are going to pester a public agency, such as the court, with trivial nonsense then you should be prepared to be told just exactly how the general public views these antics and -- trust me -- it is not favorably.

Under the Business Judgment Rule, your board has a great deal of discretion in choosing which battles to fight and which to sit out. If your homeowners have the authority to also seek judicial remedy for violations, let them fight the petty battles on their own dimes and let the board fight the big ones, if there are any.

I am not an attorney but I have represented myself in the courts for about 35 years.

The real costs in litigation comes in the discovery phase. Gathering evidence in an admissible form gets incredibly expensive in a hurry. Securing statements and documents from witness who would rather not be involved requires obtaining subpoenas, having them served, paying the witness a small fee for his time and/or travel, paying a court reporter to record the witness' statement, and paying even more for a printed transcript. And while this is happening, your attorney is also billing a couple hundred bucks an hour. Just pray that the witness says the same thing under oath that he/she said previously.

Expert witnesses come at a dear price so you pray you do not need them. Even if you do not depose a witness, someone needs to interview him/her in case their story changes at trial. Any public records that you wish to enter into evidence will need to be certified copies, starting around $20 per record. There is no real upper limit to the costs of preparing for litigation.

So, which rights to present evidence to support your position are you willing to give up to save a little money?

I solved all my HOA problems easily and at little to no cost: I do not live in a community governed by an association.

No one is suing me or even threatening to sue me about my fence, my shed, the motor home parked in my backyard, the tow truck parked in my backyard, the other shed in my backyard, or the trash cans visible from the street. I enjoy that most fundamental right of all: the right to be left alone. And I admit to being totally perplexed by those who willingly give up their right to be left alone and choose to live inside an HOA.