Enforcement of Covenants/Bylaws, Injunction?

Welcome Donovan

Is there any other history between you and this neighbor?

Donavan,

I have done my own legal work since the mid 1970's. I have filed cases or appeals at every level of state and federal courts but I have never once sought an injunction because the procedure intimidates even me. You were quite naive to think you could walk into the courthouse with nothing and walk out with a court order.

The lawyer's price is about what I would expect. Keep in mind that there is no upper limit to what you may have to spend. And the case could backfire and you would end up paying all your own costs plus your neighbor's. I just don't see where you have anything to gain even if the neighbor is forced to move his shed over another 4'-6".

The real issue is you moved in next to a trouble-making neighbor. Sometimes this does not end well. Neighbors like yours are toxic and fighting them in court will not make things any better.

My first advice might be to dump this home and move elsewhere. Or you can try to wait them out; I find that troublesome neighbors are often trouble everywhere and eventually end up losing their homes in foreclosure or being committed to a nursing home by their families.

Should you decide to stay I would suggest investing in a good surveillance system; one with cameras inside and out that you can view remotely on a smart phone. You need to be able to keep an eye on your stuff and to document any problems. Your neighbors sound like they are irrational. My own mother suffered from senile dementia and imagined that people were coming and going much as your neighbor describes. Maybe the imaginary visitors will be the worst that happens or maybe things will get seriously bad.

Thanks for the comment. I have filed for small claims several times prior in my life and I went in with my evidence and detailed events documented. I was under the impression that there would be a standard form I could fill in and attach my documents to similar to how one would file for small claims. So I guess you could say that would qualify as naive.

I agree about the real issue being this neighbor. I also agree that doing this will almost certainly not make things any better. However, this could be an example of a bully who has never had a lesson taught to them (especially an expensive one) and they really need one.

The grander of the issues here is the nature of our HOA to pick and choose (selective) enforcement. For example, I put up a satellite dish on a ground mount right after my Mom and Dad moved in because my Dad was just diagnosed with cancer and I was trying to give him some comfort while he was home between treatment days. I was contacted by the HOA that I needed to take the dish down, even though the only requirement in our covenants is that a dish over 18" is approved by the HOA. It was a standard DirecTV dish, of which it complied. We also have covenants against any basketball goals/poles yet there are somewhere around a dozen plainly visible.

I know moving sounds like the way to go, but we built this house and we love it so this isn't a route we are interested in at this time.

Donavan S Oklahoma :

Respectfully after only 8 months on site you have two problems that are going to get a lot worse if you & neighbours chose to let them.

Or maybe you can try to reach an accommodation with these folks whoever or whatever is to blame. Life's short. Why should both families waste it on adversarial bitterness ? These people could save your life someday. This might be the crossroads at which some sort of neighbourhood dispute resolution or counselling could keep both families from a future expensive hell.

If there is a neutral person or body with ADR skills- maybe even the sort of neighbourhood ADR clinic in some urban areas of my jurisdiction - why not see if both families could sit down to pre-empt what could be some messy future ?

Anyway . . The (lesser ) off set issue :

Millions of claims about survey lines and offset calculations are made without credible recourse to accurate boundary survey indicators. Many are inaccurate. Some are accurate.

Don't spend a cent until there is absolute certainty that whatever boundary /offset factuals are actually what you think.

If the neighbour's shed is some sort of payback, ask yourself what they now have to look at from their side. Count your blessing that you don't have a neighbour like mine who erected a gigantic expensive triple garage that is by-law compliantly only 3 feet from our common boundary line ( which fortunately I had previously surveyed & monumented ).

The cost of litigating over what you think is 4 or 5 feet to comply with stricter HOA offsets, could be a lot higher than the retainers. You might manage to drive the HOA into your neighbour's corner. Is it worth that ? A 35 year boundary dispute here over a 5 inch eavestrough overhang, led ultimately to over $128 K in legals awarded against the victim & criminal charges. . .

Respectfully the bigger issue : what's really going on between both sets of neighbours. See above.

Well, I suppose you could try to circulate your own petition to owners to submit to the board. (You probably want to skip the homes that are in violation.) Perhaps point out that if such violations get started they can spread really fast and turn your HOA into something unattractive. Request the Board to enforce its governing documents (CC&Rs, not bylaws, in the shed case, right?) Get your other neighbors to attend the meeting. Note your neighbor's violation, but give other examples too.

In other words, try to put group pressure on the Board to do its job.

Does OK require open meetings?

How many completed homes in your HOA? Are this lots left to be developed? Is the developer still in control?

DonavanS (Oklahoma)
As you hear above, those who are unable to persuade their HOA /condo corp/whatever to obtain compliance, face some factual & legal burdens upfront aside from the issue of internal politics.

The interplay between the "factuals" that a compliance seeker can bring onto the table, is far from the whole story. However your jurisdiction and its prevailing jurisprudence treat the compliancing standard, is a real biggy.

So also is the compliancing standard if any as worded to be the HOA duty within your site-specific CCRs/condo governance documents/whatever.

In my condo jurisdiction, for example, condo legislation specifies not absolute compliance obtained but only "reasonable steps" to get it. Several here have succeeded in getting judicial findings of under-compliancing, but at a huge price. One was a lawyer who spent big bucks and had her condo corp held liable for oppressive under-compliance. ( She should have stopped there but did not ).

Your HOA/corporation/ whatever is unlikely to be a guarantor of 100 % compliance. Fit your 'factuals' next into all that. Maybe not easy.

Volumes could be written about eccentric outcomes sometimes varying wildly within the same jurisdiction. Takes bucks & skillsets on your own to persuade outside intervention to halt directly or indirectly what you think - correctly or not - is someone's violation of an offset standard tougher than municipal.

Is that for you ? Maybe the ADR ( ? and a surveyor ) ain't such bad ideas to try first . . ?

I appreciate the comments and consideration from everyone. At the end of the day I'm not willing to dump a ton of cash into this. Honestly I didn't realize it would be that much trouble to get a very plainly violated covenant enforced. I think my course of action from this point will be to attempt to get myself into a position of power on the board so I can try and effect some change in the community. I really don't care whether the HOA chooses to enforce OR not enforce, what I care about is consistency. Pick one and run with it so it doesn't appear you're playing favorite.


Thank you for this! I'm going to put back up my satellite dish and see if I get contacted again. Based on this they don't have the authority to enforce the covenant.

Keep in mind that unless the governing documents require the Board to enforce (vs. simply having the authority to enforce (as does every member)) each Board may make their own determination. However, if they do choose to enforce, then they must enforce equally.

There could be a few reasons why the Association is choosing not to enforce:

1) There are many within the Association who are in violation and the Board simply does not want to stir up a hornets nest. BTW - if there are many in violation and they have been in violation for a long time (talking years) the courts may simply rule that that section of the covenants is no longer enforceable.

2) The Association had granted approval for the shed (even if it violates the covenants). If this occurred, the Association could be on the hook for paying to move the shed (that is if the owner desires to take the issue to court).

3) The volunteers serving are simply too busy to do everything required. (not a good reason but a realistic one) and enforcement is pushed to the back. To counter this, you can volunteer to head up an enforcement committee which would identify all violations and take the necessary steps to properly enforce.

4) Laws or court rulings have occurred that prevent the Association from enforcing that section (similar to the FCC satellite guidelines).

I understand what a lot of people in here are trying to stay, but let me give some additional information about our community.

The HOA was established in 2012. This is a brand new community of custom built homes. The CCR's have not been changed in any way, shape, or form since 2012 with the exception of the addition of a community pool.

There are no grandfathered people for anything and all current rules have been on the books and unchanged since day 1. There are no incorrect assumptions in my head about selective enforcement; it's just fact. As I mentioned earlier we have a provision against basketball goals/poles but we have them peppered throughout our community (which at current is probably around 75 or so homes).

I have a good neighbor across the street who has been under attack by the leadership about his outbuilding (which is the proper 10' from the property lines) but is made of wood instead of the "permanent color clad material" the CCR's call for. I think permanent color clad material is much more ambiguous than don't be within 10' of the property line with an outbuilding, yet they choose to leave the one neighbor alone and are harassing the other.

We have bad leadership who are playing favorites and choosing winners and losers. That being said I think most people have made it quite clear that I probably don't stand a very good chance of winning and the more I research and critically think about it the more I realize that's probably the case.

I'm probably going to work to rally community members and demand and vote for consistency in our community. Thanks for the discussion everyone.

That's a great choice.

Keep in mind that this will likely require others to step up (as I doubt such a demand will have the results you are looking for). You will likely need to replace those already serving with others who will be consistent and fair.

Gathering support to vote people out is far easier then finding volunteers willing to serve in the place of those voted out. To be successful, you will need to do both.

Perhaps you will be one of those willing to serve.

Larry B13 (Arizona)I notice has posted at another topic - also very relevant here - a reference to an undated Davis-Stirling.com article "Failure to Enforce" at

http://www.davis-stirling.com/MainIndex/FailuretoEnforce/tabid/3264/Default.aspx#axzz2svtfytFt

This adds some reasons why 'late compliancing' or 'overwhelmed compliancers' may be followed by accusations of unfairness even if not deliberately unfair.