Covenant Enforcement
Q. I am a homeowner in an HOA that recently emerged developer control. Some of the homeowners have added fences, above ground pools and large sheds without getting approval from the Association. Many of these changes do not appear to meet the standards that I was told were part of our documents. The Association says it has little or no authority to enforce the rules. How do I get the Board and the management company to enforce the rules?
A. The first step is to determine exactly what the architectural guidelines are and what powers the Association has to enforce the rules. Usually an Association's declaration establishes a committee and grants it powers and duties of the Board of Directors. The first place to look for the powers of a committee is in the policy resolution passed by the Board of Directors. Generally, this will be the procedure your committee should follow.
There are often Architectural Guidelines in the nature of rules and regulations which detail the standards for the community and the procedures for enforcement. If these do not exist, the Board of Directors should pass a policy resolution that clarifies the standards in the Association’s governing documents with greater detail and sets the procedures for enforcement.
One of the most important reasons that this resolution needs to be in place is that the actions of the Committee are subject to review in any legal action in which the Association may become involved. The more clearly the resolution defines the procedures and the more closely the committee adheres to them, the more likely they are to be successful if a violation goes to court.
The Virginia Condominium Act and Property Owners Association Act provide that in order for the Association to legally enforce any violation of the rules it must have given the violator an opportunity to be heard and be represented by counsel at a meeting of the committee or Board of Directors. There are strict rules regarding written notice of the hearing.
Before taking these steps, the Association needs to send each owner a “non-hostile” notice of a rule’s violation. It is possible that an owner does not know that he or she is in violation or doesn’t understand the rule. Offer to meet with the owner to explain the reason for the rule. In other words, do some marketing.
Subsequently, if the violation is not corrected, the owner needs to be given notice of a hearing by the Committee. This notice needs to state the time and place and the rights of the violator in that hearing. If the Board finds there is a violation, it should give the owner reasonable time to correct the problem. This may be as little as five days to remove a junk automobile or up to six months to remove an unauthorized addition to the lot.
If the owner does not clear the violation, Virginia law provides that you may levy administrative charges ranging from $10 per day to $50 per offense. This is treated as an additional assessment and is added to the owner’s outstanding assessments.
With consistent enforcement most violations will be cleared up by the first or second notice. The majority of the remaining violations can be resolved at a hearing. Occasionally a violation will not be resolved and either the Association or the violating owner will want to take the matter to court.
It sounds like the developer board did not use its authority or your documents give inadequate authority. As a member of the Association, you have the right to enforce the covenants on your own, although this is not a desirable approach. We suggest that, after you review your Association documents, you and other concerned owners attend a Board meeting and offer to help the Board members make an orderly plan to eliminate violations. Board members must realize they have a fiduciary duty to the community to enforce the covenants and promptly notify owners who violate them.
If the Board repeatedly fails to act on a certain type of violation and many owners “follow the leader”, it may lose the right to enforce the rule. If offenders refuse to comply within a reasonable time, the Board needs to take legal action.
Perhaps your Board does not understand its obligations, or perhaps it is gun‑shy about taking action against your neighbors. Whatever the reason for the lack of action, the Board of Directors or the controlling developer (whichever the case may be), has a duty to enforce the rules. The question is: what are the specific standards and powers established in the declaration of covenants and restrictions? If the guidelines are strong enough then the Association must step up and enforce the guidelines. If they are not, then the homeowners need to consider amending the Association’s documents to provide for more complete standards and to give the Board of Directors the necessary enforcement powers.