Enforcing Covenant Violation

An owner's tenant's vehicle leaked oil on the hard surface concrete driveway outside the home causing a large 3' by 10' oil stain. Before moving out a few months ago, the tenant attempted to clean the oil stain using muriatic acid. The acid damaged the surface of the concrete by eating away the top of the concrete. It didn't even get most of the stain out because muriatic acid does not "clean" oil stains.

Our covenants say an owner shall be responsible for damage done to the common property. An important factor here is that all of the driveways in the subdivision are common property. This is spelled out clearly in our CCRs and on the subdivision Plat.

We sent the owner a letter asking him to have the driveway repaired or replaced and got no response. We sent a second later about 60 days later and again received no response. Last month the board authorized a third letter giving the owner 30 days to submit his plans to fix the driveway. A week later he telephoned the president ranting and raving that he was not going to fix the driveway. The president verbally told him, "Ignore the letters and don't worry about it".

I just read this 2012 HOATalk "Covenant Violation" thread. Our covenants have a self-help provision which our attorneys have advised us (not in connection with this matter) to never use, but this isn't self-help upon an owner's lot or in/on his home. The driveway is common property; not "exclusive use", which term does not appear in any of our governing documents, but rather it is directly and specifically part of the HOA's common property.

Before we undertake to repair or replace the driveway ourselves and send him the bill, we have to find out if the president's verbal assurance to the owner bind the HOA. Aside from the fact the president should have been replaced last week, I'm going to suggest at this week's board meeting that the board authorize the VP to contact our attorney for his opinion on whether or not the HOA can still hold the owner responsible for the cost of the driveway repairs. The president had no authority to tell the homeowner to ignore written communications from the board. And if we can hold the owner responsible for the cost of the repairs, can we lien the property for that amount if the owner thumbs his nose at us yet again.

Anyone have any thoughts on this?

Reading again, you're saying the cleaning attempt damaged the concrete.

Similar questions. How severely damaged is it? Do you have a standard to reference for the amount of damage that must be present before replacing a section of concrete?

Is a cracked slab sufficient? Broken corner? What makes this particular damage worse than any other that someone could identify on your common property?

You're correct that the owner should be held responsible - and the president didn't have any authority to tell him otherwise. I hope you have an executive session where the president will be instructed to explain himself before you make it crystal clear to him that he DOES NOT have the authority to suggest to any owner to ignore CCR violation letters. If the president also tells you to buzz off, the rest of the board should probably reconsider if he should remain in that position because it appears selective enforcement is a thing with him. his assumes, of course, that your documents allow the board to appoint board officers from among themselves.

If your documents state owners are responsible for damages done to the common area, I think you're probably on solid ground, but I agree with you that it's best to turn this over to the attorney and let him/her handle this. If the owner wants to squawk, let HIM explain to a judge why his tenant did what he did and why he doesn't think he's responsible. In the meantime, get a repair estimate so you'll know what to sue for (your lawsuit should also ask that legal costs incurred by the association also be reimbursed by the owner).

This may also be a good time to remind all homeowners to check their vehicles so that they aren't leaking oil and not to do any oil changes to avoid concrete damage. Take a photo of this damage (time and date stamped, but don't disclose the address) to drive home the point.

I agree with John ... written is on record and proof of what the BOD had decided and should have been adhered to by all BOD members. Anything verbal is a he said / she said situation. One BOD member does not have the legal authority to override the majority prior decision.

Thank you for the replies. The damage isn't the stain, it's the action of the acid chewing up the smooth concrete surface. The surface is rougher than the other driveways in that corner of the subdivision; the little pebbles in the aggregate are sticking out of the cement over a wide swath. The oil leak happened literally the weekend the tenant was moving out. He normally parked his work truck in the garage but in the mad rush of 'moving weekend' he left it in the driveway for most of the weekend. On his last day here he used muriatic (hydrochloric) acid to try to get the stain out. He had plenty of it since he was a pool contractor. By the time it was brought to the attention of the maintenance committee and the board a few days later, probably on Wednesday or Thursday of that week, the tenant was long gone. There's a large patch of dark discoloration where the acid didn't dissolve the concrete down far enough to reach all of the oil that had penetrated the concrete. It stands out like a sore thumb compared to the other driveways in the area.

Hopefully the attorney's advice will guide us. I think the defense of "estoppel" won't hold up since the owner hasn't taken any action or spent any money that he could claim as "damage" in light of the president's unauthorized communication (which should all be in writing anyway).

There's still a chance the board decides to let it go. Spending $10,000 on litigation over a $2,500 concrete driveway doesn't make a whole lot of sense. Even though we could probably recoup our attorney and legal fees there's always a chance we might lose.

Has anyone contacted a concrete company to see if they could repair the surface? I would start there and then ask the owner to pay it and tell him to go after the renter. Like someone said he may still have the deposit. I don't think that a court would make someone replace it, it's a driveway and still usable. It can be ground down to remove stain and they would use higher grit to bring surface to a smoother finish but will have a stone finish look from grinding into the stone.

I would say no and the courts would think the same. Here's another point did the association maintain the concrete by sealing it so things like oil wouldn't penetrate the surface and be easier to clean by some degreaser and power washing. So does some care fall on the Association?