They did it anyway!

Peter, they called your bluff.

Now you get to see how much teeth your board actually has in it.

I would send them a violation notice, giving them XX days to repair or fines begin. If violation is not corrected, aside from fines, the HOA can also begin legal proceedings to have a judge compel compliance.

It will be trickier, but not impossible, because there was a "sleeping" board in the past. But as long as you can show consistent enforcement once the complaints are received, you should be okay.

While in discussion with our lawyer yesterday, a similar question was asked about what to do with covenant violations that have been ignored through the years. He said that failure to take immediate action against a violation makes it more difficult when the violation reoccurs. If violations have been allowed for a number of years, the restriction becomes unenforceable. This is in the state of Florida. Other states might be different.

Also, don't expect a judge to rule in your favor if you reason for violating a covenant was because you neighbor did the same thing and was not noticed. There was an Office of Admin Hearing ruling in AZ where the judge ruled that because one member did not receive notice of a covenant violation did not give another member the right to violate the same covenant. There are many justifiable reasons why one member may be granted a waiver for a particular covenant.

The head of the ARB pointed out to me: "I had a lengthy conversation with them over this. They were well aware that it was against our ARB Guidelines and that they could not paint their driveway."

I think that is the primary issue. If you ask and are told "You can't do that..." and then you do it anyway, you should incur the wrath of the HOA. I don't want to take people to court, I want them to be good neighbors. These folks are not being good neighbors.

**the word "fulling" above should be "fully" **

Peter,

Well, it's just the word of the ARB head against the member! Never rely on verbal conversations. Everything should be in writing then the BOD (and the courts) know for sure the member knew what he did was in violation of the covenants. A verbal conversation will come back to bite you everytime -- take it from someone who knows!!

In this case the violation has not existed for a number of years. It's my understanding that this homeowner just recently did the painting of the driveway. Apparently there has been one or two who have painted theirs some years ago and the board was asleep at the wheel.

That does not mean that the board cannot enforce against THIS homeowner.

And even if it were a "he said/she said" situation with the ARC guy and the homeowner, apparently there was no written approval given, so the violation still exists.

Enforcement is possible, and, if this board wants to continue to maintain the integrity of the governing documents (which former boards have clearly not wanted to do), then they need to move forward to enforce against this homeowner and require compliance.

I understand what you are saying, DJ. In the one case we had to do this, we actually ended up with a sheriff escort. He didn't have to stay, but it was a precaution as the work got started and also to escort the animal control people when they had to remove the resident's 3 dogs.

Peter,

It's really very simple. A past board allowed them to paint the driveway therefore, therefore those homes that received previous approval were approved.

Question: Does you Association allow members to repaint their homes the same color without Association approval (a maintenance process vs. an actual change)? If it does, then logically this process should apply to any painted surface, including the driveway. However, based on your post, this is not what happened.

Your member, as I gathered from your post, submitted a request to change the color of the paint to red. That request was denied.

Your member, chose to violate the CC&Rs and the denial of his request and painted the driveway red anyway.

Your Association must therefore, go through the enforcement process of your Association to return the driveway to the previous color.

The infraction would be that the member changed colors without prior approval. Nothing else. The issue of the driveway being painted earlier does not apply. The previous approval to paint the driveway from an earlier board does not apply.

All the Association needs to do is stick to the facts - and keep them simple: A color change requested was denied and the member chose to do it anyway. Nothing more, nothing less.

Had the member actually painted the driveway gray (the original color) and the Association denied him to properly maintain it by applying more gray paint, the Association would probably lose in court. This would be because, I suspect, that they don't disallow any other member from maintaining their painted surfaces. Fortunately, for the Association, the member painted it red so this discussion doesn't enter into the violation.

So by simply enforcing the rules caused by the infraction you will be showing the wisdom of Soloman by not overturning a ruling by a previous board and demonstrating the fairness of the Association by applying the rules equally to everyone.

I'm not a lawyer and I don't work within the legal profession. I'm offering advise based on your posting, research, personal experiences and, hopefully, some common sense.

Hope it helps,

Tim

So your board is going to allow some exceptions and not others? The membership should be told what the board failed to do and polled to find out if membership wants to remove the sloppy board members. Do you have an HOA manager, this is the kind of thing they can prevent.