Three Components to Covenant Enforcement
Covenant enforcement is a key component to association living. If you are an association leader, are you using good business judgment when enforcing the provisions of your association’s governing documents? Are the deed restrictions uniformly enforced? How do legislation and regulations affect that enforcement?
Good Business Judgment
Homes are extremely personal to property owners. The community association is a business created to maintain common elements and enforce restrictive covenants. It’s understandable why there may be discontent between the two groups. While developing covenant enforcement guidelines, board members should consider the impact on their residents.
Ask yourself these questions:
- Are you considering the entire community and not just a single demographic when developing guidelines or rules and enforcement processes?
- How will homeowners respond to the enforcement policy?
- What was the developer’s intent when drafting the original restrictions and enforcement procedures?
Board members and managers must consider all circumstances when uniformly enforcing the association’s governing documents. Remain neutral and do not inspect a specific home or single restriction while ignoring other homes and compliance requirements. It is easier to log more covenant violations on homes near the entranceway than in a building or cul-de-sac at the very rear of the property. However, be sure to inspect the entire property either during the same visit or on a rotating basis to ensure that each section is visited routinely and regularly.
In addition to frequency, consider all rules and regulations. Be sure to review and know the covenants before performing inspections. One restriction is no more important than the next. Weeds, trashcans, pets, and parking may be your most frequent violations, but they are no more important to enforce than improper storage of water hoses, construction material or boats. The board of directors is charged with enforcing all covenants until they are resolved in accordance with the process detailed in the governing documents.
Government Legislation and Regulations
Governmental legislation and regulations impact the enforcement of single-family and condominium developments. In fact, federal and state laws supersede association covenants.
For example, the Federal Communications Commission (FCC) implemented OTARD (Over the Air Reception Devices) Rules in 1996 prohibiting associations from unreasonably impairing the installation, maintenance, or use of satellite dishes smaller than one meter, TV antennas, wireless cable antennas, and wireless antennas. This particular Rule continues to change and evolve. To learn more about this FCC Regulation go to: http://www.fcc.gov/mb/facts/otard.html
Other examples of governmental decisions that overrule community associations’ governing documents are the current efforts by federal, state and local governments to review and implement green initiatives. New laws in some states require associations to approve solar devices, exterior clotheslines and desert-scape landscaping. While new laws may conflict with an association’s covenants, government regulations take precedence and supersede the association governing documents.
Covenant enforcement is more than simply driving through a community and noting violations. Board members must use reasonable judgment when developing enforcement guidelines, considering the impact on all owners and residents. Board members must set aside their personal feelings and opinions so they can uniformly enforce their community’s deed restrictions whether they agree with them or not. They also must keep informed of new and changing laws that affect their association’s governing documents. How? By joining organizations such as the Community Association Institute (www.caionline.org) and requiring their management company to assign a manager with the PCAM designation to their community.