agreements with covenant violators

With all due respect, I think you and your board are making a huge mistake, or rather, series of mistakes.

First of all, grandfathering cannot occur since technically, you haven't actually changed the covenants.

Instead what you have done is declare that it will be too hard to do the work needed to bring compliance about, so you are effectively throwing in the towel and pretty much neutering the covenants and basically eliminating them for EVERYONE.

If you want to "ease" the transition into enforcing the covenants, then I suggest at MOST extending the amount of time you require that the properties be set "straight," or brought into compliance.

Start a thorough communication campaign giving a heads up to all owners that violations that exist now will need to be brought into compliance by.....the end of the year....or whatever generous time-frame you think is fair.

Repeat the communication several times over the coming months and be sure to include backup that explains the out-of-compliance conditions.

It makes no sense to claim that you and the new BOD want to end the covenant violations, and then proceed to completely ignore them, turn your head away from them and then try to enforce them on subsequent owners.

The two Cs are: Consistency and Communication.

You need to discipline both.

I also strongly urge resisting a one-time use amendment.

If it's a good enough restriction to maintain (though, as you want to do "grandfather in") then it's a good enough restriction to enforce now (albeit a little harder).

Either way you go, you will be opening several cans of "Unintended Consequences" that you won't be able to easily rectify.

Remember, "covenants" are exactly what they mean: solemn contracts, oaths or bonds. We don't get to decide that because some are harder to enforce now, we just simply ignore them (or "mutually agree" them away).

If your previous boards have been lax, that doesn't mean the covenants are then waived or void.

You simply pick up the baton and put work slowly, yet consistently and diligently and get them back on track.

Will you get push back? No doubt. But once completed, your subdivision will be in much better shape.

I will agree with Robert on this: If your board for some reason does NOT want to do the hard work of bringing the violators into compliance, then perhaps your homeowners may be open to abandoning those particular restrictions in the long run.

If so, then follow your governing documents for the process to amend and have the owners vote to eliminate them altogether.

Be prepared, however, for the bulk of the owners to reject removing the various restrictions.

The point is, I doubt the board has the power in and of itself to enter into sub-contracts (covenants) with people in violation of the contracts (covenants) that everyone agreed to in the first place.

If you enter into to side covenants (which is basically what you would be doing) that Joe and Mary get to take advantage of, then I, who may not be out of compliance now will want the same side covenant if and when I come out of compliance (for whatever reason) in the future. Why? Because there's basically no good reason to say, "let's just agree with each other not to enforce against these, but make sure everyone else has to stick to them, including people who buy into the subdivision at a future date."

And that's just the tip of the iceberg on the unitended consequences the BOD would be setting the HOA up for. . . . (dangling prepositions notwithstanding)

I agree with Michele's opinions and Robert offers good sense worth thinking about also. But, frankly, I'd like to hear back from Bob. I'd like to know exactly what type of violations he would like to grandfather. IMO, grandfathering should only be used for restrictions that have changed or new restrictions; i.e. the BOD adopts a new law prohibiting basketball hoops and grandfathers all homes with existing basketball hoops. When there has been laxity in enforcement these type problems are created for the new board that wants to actively enforce. To grandfather all the violations is, IMO, the easy way out but not necessarily the best thing to do for the assn. Then again, depending upon how long the violations have remained in existence the time to enforce may have expired. It can be a real can of worms and one that might really require the advice of an attorney. Actually the most prudent thing to do may be to eliminate these restrictions.

Bob, you really can't.

Seriously, you want a binding agreement that essentially throws out a PREVIOUS binding agreement that the entire association agreed to upon moving into the development? I would bet real money your documents do not give the board the authority to do that.

But this particular statement I take huge issue with and wonder why you or any of the others are even living in a deed restricted community: ". . . and might even be unfair to suddenly change the accepted practice. "

Seriously? You find it unfair to "suddenly change" an "accepted practice" that is in direct conflict with your binding governing documents?

You consider lack of enforcement by lazy boards the same thing as the entire development deciding that certain elements do not need to be adhered to?

I'm so glad that the periodic speed enforcement in my subdivision continues, despite "accepted practice" of numerous homeowners speeding through the residential area. I'm so glad my local constabulary doesn't consider it "unfair" to enforce against such "accepted practices."

In addition, no one "objecting" is not the same thing as tacitly approving.

There is only one way to resolve these "issues" and that is to introduce and vote on amendments to remove those particular restrictions.

The result of the vote should tell you what you need to do.

If the majority (or whatever number your governing documents require) vote in assent to remove those restrictions, then you can "ignore" the violations, as they would no longer be violations.

But, if the majority (or whatever number your governing documents require) vote to DENY the amendments, then you have your answer.

You must enforce.

And you must do it uniformly, regardless of whether the violator is a sweet or cranky old lady.

In the meantime, it would be in your best interest to begin the aggressive communication plan to inform the development that the Deed Restrictions ARE still alive and well, and that everyone should be prepared to take responsibility for out-of-compliance conditions that may exist on their lots. Because, as is your duty, you will begin enforcement notifications until such time as the documents have been changed to remove or amend those clauses that the homeowners vote on.

It seems to me, though, that the "war" apparently has already begun, and the board has already "lost" (or surrendered) without even setting up a front line.

Bob,

Regarding the garage conversion; what is really wrong with it? Do you really think the property values of the community are lowered because a garage was converted into a room? Did the property only have a 1 car garage that was converted or is there still a garage attached? In my neighborhood most homes have 3-car garages, but some opted to have a den instead of the 3d-car garage. I can imagine it might be difficult selling the property w/o a garage but that shouldn't lower anyone elses property values. In fact, I think the fact that it's an older neighborhood would justify the lack of a garage.

And the sheds in the back yards of some homeowners aren't really a big problem, are they? Most h/o's need a shed, if only to house all the necessary garden tools, etc. From what you have written my opinion is that the CCRs need to be amended to allow for these things. Some restrictions can be placed on each, but I see no reason why they cannot be allowed.

And, as mentioned in another thread, I believe the law of "laches" would apply, meaning the h/o cannot be required to correct the violation as too much time has gone by.

Michele,

I agree with what you're saying! An amendment to the CCRs might be the best way to go and if the BOD is going to pursue this they can certainly wait until the vote is made to take any action on the violators. After all, they haven't done anything for at least 3 years! About sheds: yes I've seen a few that I wouldn't like seeing in my neighborhood either. That's why I said the board could place restrictions. There are a lot of really nice sheds out there, so there's no reason to deny this to anyone.

Here is the legal definition of laches:

"Undue delay in asseting a right or a privilege (compare to statute of limitations). A doctrine permitting dismissal of a suit because a plaintiff's unreasonable delay in asserting a right or privilege has been detrimental to the defendent's ability to make a defense."

If the declaration is amended to allow something that was prohibited in the past, anyone who was in violation would now be cured. If the amendment prohibits something that was once allowed, then anyone who is in violation at the time the amendment was recorded should be grandfathered. What these amendments do is effectively erase any violations that exist with regard to the particular restriction being amended.

Well, regardless of what one attorney says, making a contract with one party that violates the contract of all parties without their sign-off or approval really is not the way to go and could very easily come back and bite you all in the rear, but it's your HOA.

Bob,

The "property value" aspect is really a touchy issue. IMO, there are a lot of factors taken into consideration when determining the property values of the neighborhood. Perhaps the fact that many residences do not have a garage might be cause to lower proprety values, but when the age of the neighborhood is taken into consideration, that might change. I really don't know. But, regarding the property value of each individual home: IMO, the property value is definitely affected if there is no garage as opposed to having 1, 2, 3 or more garages.

With regard to the sheds, you might consider giving those residents with very old sheds one year to replace them. Since it's been over 20 years, what's one more year. This would let the members know you are aware of the financial burden and willing to give them time to comply with the restriction.

As you say, it's going to take some time until the BOD is able to bring everyone into compliance. I'm sure this whole mess is a real wake-up call for the board; nothing like inheriting someone's elses (a lot of someone elses!!) problems.

BTW, I'm sure you know, common sense is not so common! LOL Thx for the compliment. :-)

Bob I think you will learn very quickly that to enforce the covenants takes a stern hand and anything except that will be tested over and over. If you are going to enforce, do it now, and with resolve or forget about getting compliance. Voice of experience speaking here.