Abandoned Covenents

I am the new President of a HOA of 80 homes. Our community is about 8 years old and for over 3 years, residents have been ignoring the covenents and I can find no records of boards during this time doing any reinforcement of covenents.

Many homes have changed ownership during this time so many new residents moved into a neighborhood in which the covenents were not being enforced. I am working towards gently turning the direction back to enforcing the covenants, in hopes a gentle yet steady change won't meet with as much resistence.

An example could be - A neighbor moved into the neighborhood 3 years ago and always parked their car in a spot that the covenants don't allow. They bought the house because they saw the HOA wasn't at all strict. Now 3 years later if they are told they cannot park there, do they have a valid legal arguement for abandoned covenants.

Does anyone have any experience with this type of situation?

Cheri

Just because the Covenants were not enforced in the past does not mean they can not be enforced in the future. Look at your Declaration. Often there is a clause stating that failure to inforce a violation of a restriction does not prohibit enforcement of the restriction in the future.

Thanks for your thoughts. I have no agenda other than fulfilling my job and helping my community reach their goals. The first thing I did as President is send out a resident survey. There is a significant calling for reinforcing the covenants.

I don't mind doing so, however, I also believe it would be wrong to suddenly start enforcing the convenants, so I am taking a more gradual layered steps like intially reminding the neighborhood of the covenants in newsletters/website, making sure everying has a copy, Sharing a summary of the resident surveys etc.

In the meantime, I am working on landcaping, starting some committees (we have none), more get togethers (also greatly requested in the surveys), etc. to hopefully will build more pride and care for our small community.

We don't have a large reserve fund so I am trying to be very smart about what I am doing. I am aware I have to do things differently under these circumstances, and allow people time and pleny of due process. I plan on doing as much as I can to build our community spirit not bash it down. If it reaches a point that I have to start fining, it means that that individual has been given every opportunity, including, should they desire, a neighborhood hearing to see if the neighborhood still supports this covenant.

My concern was whether our HOA has waived it's rights altogether by it's neglect as I see the "I have done it that way for years" arguement as having some weight. I will read through our Declaration.

I really appreciate everyone experienced advice.

Cheri

Sorry, no, just enforcing, not reinforcing. You're right, wrong word. I am not going to pick and choose. Any enforcement will be across the board. However, I believe one of the covenants, maybe more, will be questioned by many members and therefore it may be time to see if the neighborhood wishes to do some amending to the covenant. This would not be me picking and choosing, this would be the members picking and choosing if they want to amend any covenants and me helping them research and guide that process.

Cheri

Cheri, My HOA is exactlly like yours. When you sent your survey out what precentage of your members replied and of that percentage how many showed interest in inforcing the covenants?

Mike

I am still trying to figure out the numbers. Human nature has come into play. Those that were unhappy, were very quick to get their surveys turned in. Initially this made it look like their is a large calling for covenant enforcement; however, as time passes that may not be true. This is why I am taking things slowly and researching the situation from all angles.

The survey was sent off with some other things for residents to return. I have heard back from exactly 50% of our residents so far.

Of that 50% - 53% Returned Surveys (which means 47% sent their other info in without returning the survey.)

Of those who returned the surveys, 86% want more covenant enforcement (The other 14% had other ideas but nothing covenant related)

That 86%, however really only represents 23% of our residents.

It's been a month since the residents received their surveys and I am thinking the other 1/2 of the neighborhood didn't hurry to return their surveys because these matters are not that great of a concern for them. I expect to receive some more, but it's definately been slowing down.

Looks like I need to get more information from the community.

Cheri

Lisa - I don't follow your logic. Speeding tickets have no correlation with CC&R violations. It is not o.k. to cite and fine one member for something nine other members are getting away with. I hope someone would challenge you if this is happening. Harold

Ok....skip the analogy for all those who didn't get it. Regardless of right or wrong, selective enforcement happens either by chance or by choice in every association.

We as a Board do not drive around and 'police' our neighborhoods every day. We may see a violation in one instance, and not in another. Consequently, we may enforce rules in one instance and not another. That is what I meant (in essence. )

Yes, there are courts full of people fighting 'selective enforcement'. But just as the point you elucidated....just because you were the one person who got caught doesn't mean you didn't break the rules. Ditto for all those who did not get caught.

"Failure to enforce is not a waiver to enforce" has been upheld in as many courts as it has been struck down. It's subjective.