Covenant Enforcement

AIM

Are the complaints signed by the complainer or are they anonymous?

Bottom line is the sheds are violations so the question is how/can/should a BOD ignore violations?

Al,

There are many sicko's who find it necessary to have a rigid set of rules that they must follow. For these types, an HOA is a magnet. The problem for the rest of us is that these mentally disturbed individuals often expect the rest of us to rigidly adhere to their interpretation of the rules.

As I understand it there are some rule violations in your HOA and some of the violations have been in place for years. All but one resident seems to have no problem with the way things are.

Most CC&R's do not require the association to enforce every violation of the covenants. The board has a great deal of discretion in choosing which battles to fight and which ones to sit out. It sounds like you have chosen wisely although at least one of your residents will not agree with that.

CC&R's usually have a provision for a member to seek enforcement through civil action. Since you are likely under no obligation to do anything and the anonymous complainer has the authority to spend all the money he wants to on enforcement, I see no reason for you or the rest of the board to take any action. And since you do not know who the complainer is, you cannot answer him directly.

You might want to consider adopting a rule against making anonymous complaints to the association.

May I suggest something? A HOA is run by its members and by its members. That means you all can change your rules and accept the sheds. How to change your CC&R's are in your documents. Something no longer considered a violation can not be in violation.

Btw... This is recommended to do anyway every seven to ten years to update or change rules if possible. Laws and the way we live evolves and so should the rules we live under.

AIM,

Are sheds not allowed at all or are they allowed with prior approval?

If prior approval can grant a shed, the solution is simple:

1) have the individual provide prior approval. If they don't have a copy have them submit a request.
2) Once a request is received, can approve the existing shed until mm/dd/yyyy (normal life) and at that time the shed must be removed or brought into compliance.

Now, if sheds are not allowed at all, there are two solutions:

1) take them through the enforcement process (which you said you don't want to do)
2) start a petition to amend the governing documents to allow sheds and make criteria for the sheds (height, color, material, etc.). You can even specify that existing sheds are grandfathered if you wish.

One other options people have not stated is that unless the Board has a requirement to enforce (typically governing documents grant the authority to enforce but does not require enforcement occurs NOTE: this same authority is given to each member) the Board can simply respond (and this will not be popular) that this Board has chosen not to enforce that covenant but a future Board still has the right to make that decision for themselves. Point out that the Documents still allow the member to enforce the covenants through a court of law and they are free to do so. Additionally, if desired, they may submit their name for nomination to the Board and, if elected, may be part of the decision process the following year.

Along with not being a popular answer, you are already aware of the other possible consequences of additional sheds and/or, if challenged in the courts, the possibility of that covenant to be ruled unenforceable. It's not the best option but it is still an option.

OR, you could add a twist to my last option and rather then say you have chosen not to enforce, you can simply state that the Association at this time can not afford the costs of legal action to enforce without a special assessment.

Obviously you learned the lesson of needing to make annual inspections for covenant enforcement.