covenant enforcement

what can you do if the board of directors refuse to enforce covenants

First, a warning: if you're not on the board and enforcement actions must be treated confidentially in your state, you have no way of knowing what sorts of actions were taken or not taken. To anyone not involved, a violation that is being ignored by the board can look exactly like one that the homeowner refuses to correct.

What can you do?

First off, many states allow individual owners to enforce the covenants themselves by filing lawsuits against the offending person. Obviously this can get expensive, so it's a good idea to pick your battles.

Which brings me to the board. Enforcing covenants is tough, and frankly the board has few weapons against a stubborn owner. There are fines, assuming your governing documents allow them. But what happens if the owner also refuses to pay the fine? In many states, an HOA can't foreclose based on fines, which means that the board is left with filing a lien and hoping the offender sells the home, or they take legal action. As noted above, this can get expensive. And I can guarantee that there will be homeowners who would be outraged over assessment increases to pay for something as trivial (in their minds) as a neighbor not obeying the rules.

The real solution is to find like-minded neighbors and get yourselves elected to the board. Then the ball will be in your court and you'll be able to decide how to deal with issues like this.

One thing boards can consider is making sure that all payments received are applied first to outstanding fines and then to assessments. So somebody who tries to ignore a $50 fine will discover they are $50 behind on their assessment. Then the board can foreclose.

However, I agree it is preferable to simply convince the board to enforce rules or get on the board yourself.

it is illegal in Delaware

§§ 81-316 (m)
(2) The association shall apply any sums paid by unit owners who are delinquent in paying assessments as follows: (i) first, to unpaid assessments; (ii) then to late charges; (iii) then to attorney’s fees and other reasonable collection charges and costs; and (iv) finally, to all other unpaid fees, charges, penalties, interest and late charges.

California has the same procedure as Texas.

May I ask how you think a HOA can enforce the rules? Just curious. The HOA is kind of limited. They can fine but should have a "fining schedule" that defines the rate of fine and what is finable. Otherwise, what other legal measures do you think or can they do?

When a board enacts rules, the rules have to be reasonable. When the declaration provides a prohibition, the declaration has to be enforced.

A declaration section stating no motorhomes may be parked on the property means no motorhomes, , not you can park it there for 2 days.

You can't ASSUME a violation isn't being addressed. Just like Joe says... The response could be a big fat middle finger. Which then can require more legal action and expenses.

A HOA power of enforcement and what they can do is in their documents. Some HOA's have the power to fine but lack the definition of what for or how much. That is why a "Fining schedule" should be in place with EVERY member knows. Example: Leaving trash can out over the weekend. $25 fine up to $100. If you HOA does not have the power to fine, then has to find other methods.

We had the ability to fix the issue and send the owner/member the bill. If they did not pay that bill, then we could place a lien for that amount. However, liens/foreclosures are otherwise for unpaid assessments not fines.

before you launch into a discussion on enforcement practices, take a serious look at the wording of the covenants, some (in our HOA) leave leave much to opinion (ie in one person mind it is a violation in another's it is not.) and pursuing enforcement action in those cases, where they might progress to court, will get you a repremand from the judge to tighten up your covenants.

I am catching on a little in the area of covenant enforcement, Ellen in Idaho.

It reminds me that one never wants to be the “interesting patient” when it comes to a discussion with a physician. Boring is the way to go.
Our minutes indicate that approximately 5 years back the Board of that time noticed that there wasn’t much of anything amongst all the governing paperwork about enforcement. The AC (architecture committee) remained under the yea or nay of the Declarant, there was wording about warnings followed by liens for dues but nothing at all regarding anything else. So they started a 2 year process to create what was missing. It was a lot of work it appears. All the homeowners were included in approving or disapproving a number of rewrites, until the task was completed. Then the Declarant changed his mind about supporting that endeavor. It was understood, per the minutes, that enforcement, if any, remained the domain of the Declarant. From that point on there were references from the Board asking homeowners to voluntarily follow the rules and adhere to the CCRs. The current President told myself and my spouse soon after we moved in that the Board has no power to enforce anything. Weirdly enough, they try it every so often anyway.

That is interesting.

Now it’s 2024 and our State passed a law in 2023 which says that covenants which have not been enforced for 8 years or more are no longer enforceable.

Before running for the Board I tried to present a 2019 State law specific to HOAs which would directly impact an action the Board was taking. However, the Board chose to pay for the services of the Declarant’s attorney to get their project through and the Declarant’s attorney’s opinion was that his Client’s interests would have precedence over the new State law. Since the Declarant’s interest and majority of the Board preferred the same outcome for the project they deemed it was unnecessary to communicate the law to the general membership. That knowledge may or may not have changed the outcome of the project, I can’t say. In casually speaking to a number of homeowners since the project was completed, it’s interesting that a good number of them think the outcome is the opposite of what the other half think they understand.

My simple ways would prefer that members all receive the same true information. If a project arises which requires a vote to occur, then the process, such as it is under Declarant-control happens and people can vote as they see fit.