Enforcement of Protective Covenants

Welcome to the Forum, Michelle. Read your CC&Rs. In them it may say that other owners besides Board members are able to enforce your covenants--via the courts if necessary.

Can you supply some examples of violated covenants that your Board is not enforcing? Do any jeopardize the health or safety of HOA members?

For legal advice you should consult your attorney.

Typically, the governing documents authorize the Association and individual member to enforce the covenants, restrictions and conditions. The documents usually do not require that a member or the Association actually enforce violations. They have the authority to enforce and may enforce if desired, but are not required to enforce.

Additionally, there is typically language in the governing documents that specify failure to enforce a covenant now does not prevent enforcement in the future.

Now, every State is different and some States will specify that if x amount of time has passed once the Association has learned of a violation, they may no longer enforce that violation. This is why I said you should consult with an attorney.


Board members are always exposed to the possibility of a lawsuit for any decision, action or inaction they do.

The best recommendation I can offer is if an Association is going to enforce a covenant they should enforce that covenant on every member equally. Otherwise they face a potential legal action for selective enforcement.


That is a legal question best asked of an attorney. I am not an attorney.

In my mind, I would ask the owner, if the issue bothered them so much why didn't they exercise their authority and bring enforcement action against the violator themselves vs. bringing legal action against the Association for failure to enforce.


Negligence, as described by JoeF in this thread: In order to prove negligence you must show 3 things: That the person had responsibility for and control over the item in question; that he was aware (or should have been aware) that a problem or defect existed; and that he did not make a good-faith attempt to correct the problem or defect within a reasonable time-frame.

Lets take worst case for the Association. Selective enforcement. This is where the Association forces compliance on one member but not another for the same violation. If it goes to court the following may occur:

1) The judge rules the covenant unenforceable.
2) The judge rules the covenant enforceable and the member must correct the issue.
3) The judge rules the covenant enforceable and the member must correct and the Board must start enforcement action on all other violators.

Oh, of course there will be court costs and legal expenses no matter who thinks they are the winner.

Tim,
Thanks for the above. Very helpful.
Mick

Michael,

If your covenants allow any member to enforce the covenants through civil action in the courts, then it is my opinion that you cannot be held liable for failing to enforce them. Your power to enforce the restrictions are pretty much the same as any member's, so I cannot see a court upholding a lawsuit against the board for failing to remedy a situation that the plaintiff himself had equal right to remedy. I just do not believe that you can compel someone to file a lawsuit that you yourself could file.