enforcing indentures

Started by SharonS6 • 2 replies • 1884 views

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SharonS6 (Missouri)
Posts: 9

Posted:

I would appreciate hearing from other trustees concerning indentures which specifically note a process of enforcement. After citing some homeowners for violations, it became evident that there was no process in our covenants to actually enforce compliance. This would be especially helpful if your subdivision is in Missouri. I feel as though I am wasting my time asking this owners to conform to the indentures since there is nothing to back me up.

GlenL (Ohio)
Posts: 5,491

Posted:

Sharon it would be unusual if the powers to enforce the CC&R’s weren’t spelled out somewhere in them. Look for phrases such as: To enjoin, abate or remedy by appropriate legal proceedings, either at law or in equity, the continuance of any breach. An action by the Association may be commenced by the Association in its own name, or in the name of its Board of Trustees or in the name of its managing agent.

Or: may be levied as a special assessment against the Home Owner in question and his or her Lot.

This doesn’t mean you can make it up as you go along. The BOD needs to set its policies in writing; especially the collection policy so the H/O’s know what will happen every step of the way. Then comes the hard part, the BOD needs to follow it and document every thing that happens. For instance if a H/O is being charged a late fee and finds out that the BOD waived the late fee for another H/O they need to be able to show that H/O one consistently ignored all communications from the BOD while H/O two contacted the BOD with a reasonable explanation and asked that the fee be waived.

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MicheleD (Kentucky)
Posts: 4,491

Posted:

Glen is correct. The covenants will give the board general broad powers of enforcement, and generally do say something along the lines of this:

"Section 1. Enforcement. Enforcement of these restrictions shall be proceeding of law or in equity, brought by an owner or by Developer against any party violating or attempting to violate any covenant or restriction, either to restrain violation, to direct restoration and/or to recover damages, failure of any owner or Developer to demand or insist upon observance of any of these restrictions, or to proceed for restraint of violations, shall not be deemed a waiver of the violation, or the right to seek enforcement of these restrictions."

Now the board would do well to develop a process that enables consistent and fair enforcement across the board.

That would be developing a policy whereby a first, courtesy notice is given. If compliance is not gained, a second notice may issue. If compliance is still not gained, then a letter requesting compliance might come from an attorney, indicating that a legal action will be filed to compel compliance. If compliance is still not forthcoming then a lawsuit may be filed.

Some states also require a sort of escalating notice policy. Sometimes that might also mean allowing for a hearing once demand for compliance is made. You would have to check with your state and local laws for that.

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