Wednesday, December 30, 2015

What happens when common sense overrules Covenants and Design Standards?

As community association managers, we are contracted to inspect properties on a frequent basis, adhering to the language in the covenants that bind that association and issue violations in situations that breach those covenants. There are times when something might be ever so slightly outside of these guidelines and as such, falls into a “gray” area." The question becomes "Where do you draw the line with things of this nature?"

When something straddling that line arises, we typically first consult the board for their take. We try (and also advise the board) to look at the big picture and all of the possible outcomes. What consequences may arise if we decide to pursue this violation and take it as far as filing a lawsuit?

Remember that governing documents are v
ery general and broad and require particular rules and regulations created by the board of directors to narrow them down. Also, these covenants and rules have to be followed consistently. If not, you have a selective enforcement issue where an owner could argue that you are picking on him and not on his neighbor: This could get really ugly in court!

We have witnessed certain cases where the association loses because they either didn’t have every fact straight or they were being too harsh on the homeowner. Recently here in Georgia, an owner decided to place a large American flag in his yard and was told by the association that it did not conform to the covenants and therefore had to be removed. This caused a huge uproar with the community and ended up on the local news. Adding fuel to the fire: The owner was a disabled vet showing his patriotism, and the ‘Federal Freedom to Display the Flag Act’ of 2005 allows everyone to display his flag in front of his home.

Something else to consider is that “times change”. Most governing documents were written 10, 15 or even 30 years ago. Some things that were standard practice then might not be so today. For example, some covenants might require a particular kind of material to be used on all homes - and now research shows that the material is deemed not as sturdy(or maybe even hazardous to your health). In a case like this, it’s not in the board’s best interest to push for continued use of this material.

The bottom line is that sometimes you have to pick your battles. Choose carefully when deciding to push an issue that may end up getting the association into hot water. When in doubt, consult with legal counsel. An attorney experienced in HOA laws will be able to decipher your documents and give you the best legal advice, based on what they see happening elsewhere. Having an attorney back you up provides the best ground to stand on when defending against attacks.

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