Homeowners disregard covenants

We're a relatively new very small (23 homes) HOA, and are having a problem getting compliance with our covenants. We really don't have enough money in our budget to pay lawyers, plus we would prefer not to go that route. A homeowner recently painted their home a color that is not in keeping with the neighborhood. The covenants state that a homeowner must get permission to paint a color not already in use in the neighborhood. When contacted about it (while the painters were still here), they claimed ignorance. They said they didn't know they weren't allowed to change colors. We told them that they had received the covenants when they bought the home and had signed saying they agreed to them. They have basically said that's fine, but they don't intend to re-paint. Once we brought up the fact that he had signed the covenants, they mentioned that other people have basketball goals which are also against the covenants and we permit those. We are all volunteers who work full time, and are at a loss as to how to handle this situation. We can't imagine being so dismissive of our neighbors. We appreciate any advice on how to handle this type of situation before we completely lose control. We also don't want to get sued. Thanks so much.

SusanH23, what is most important is what Georgia statutes and your HOA's Declaration say about the HOA's right to enforce covenants. If you quote exactly what your HOA's Declaration says about enforcing the covenants, people here can give much better responses. Most importantly, does your HOA's Declaration authorize fines?

As for Georgia statutes, this is likely what will be most relevant:
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OCGA Section 44-3-223 - Compliance with provisions of instrument and with rules and regulations; penalties for noncompliance
Every lot owner and all those entitled to occupy a lot shall comply with all lawful provisions of the property owners' association instrument. In addition, any lot owner and all those entitled to occupy a lot shall comply with any reasonable rules or regulations adopted by the association pursuant to the instrument which have been provided to the lot owners and with the lawful provisions of the bylaws of the association. Any lack of such compliance shall be grounds for an action to recover sums due, for damages or injunctive relief, or for any other remedy available at law or in equity, maintainable by the association or, in any proper case, by one or more aggrieved lot owners on their own behalf or as a class action. If and to the extent provided in the instrument, the association shall be empowered to impose and assess fines and suspend temporarily voting rights and the right of use of certain of the common areas and services paid for as a common expense in order to enforce such compliance; provided, however, that no such suspension shall deny any lot owner or occupants access to the lot owned or occupied.
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If your HOA does not want to hire its own attorney, then the Board can write a litter like the following:

Dear HOA Member Jane Doe,

Your house's color does not comply with the HOA's covenants. Please immediately take steps to correct this. By October 1, please let the Board know your timeframe for doing so. Unfortunately, if you do not correct this violation of the covenants, the Board will be forced to impose fines and take legal action against you, pursuant to OCGA 44-3-223.

Thank you for your kind assistance on this matter,

Board of Directors
_____ Homeowners' Association

Everyone agrees to comply with the covenants when they bought their homes, so if they didn't take the time to read them, that's their problem. Unfortunately, establishing CCRs is a lot easier than enforcing them, and if they aren't enforced after a long time and the association tries to use for compliance, a judge might render them invalid because no one's tried to enforce them.

You're a small communuty, so perhaps it's time to have a good look at the CCRs and determine if any have outlived their usefulness of are unenforceable anyway because they contradict local state and federal. An example would be covenants that were written to keep people of color from buying a home in the community.

This isn't the same as tossing all the CCRs - There should be a few that can ensure the neighborhood is clean, safe and attractive. For instance you may want to permit basketball goals, but require they be kept in good order and homeowners are responsible for ensuring they don't attract a ton of people and cause noise and traffic problems (two reasons we got rid of the basketball half court in my community).

To amend the CCRs will require homeowner approval, so read the rest of your documents to see how that's done. You may as well discuss rule enforcement while you're at it. Homeowners must understand that if they refuse to comply, the association can and will take legal action to bring them into compliance - and they'll also be required to reimburse the association for its legal expenses incurred in taking legal action. In some cases, you may be able to do that through small claims court, which can be a lot cheaper.You

Homeowners can also enforce CCRs against each other, so if someone's realm honked off about the house color, they can she the other and see what a judge says - it would be interesting to see how far "I didn't read the CCRs" will go. Then again, I would also wonder how much the association has done to remind homeowners of the rules. Since people don't read, an annual reminder published in a newsletter or website may be helpful.

There will be some pushback, so you need to toughen up regarding legal action. No one likes being sued, but people often threaten that but don't follow through, especially when they see how time consuming and expensive it can get. The board does need to set priorities on how far it's willing to go - for example, I might not take action on a house color, but I would go to war on something that's causing a safety issue.

Remember fining requires two things. First the Covenants.Bylaws have to allow for such. Second there must be a fining schedule. Fining cannot be done willy nilly.