Are you wondering how to enforce CC&Rs in your HOA community? Looking for information on the exact process that you could follow?
CC&Rs (covenants, conditions, and restrictions) are the rules of a planned community that, in the simplest terms, define what residents can and cannot do with their properties.
One of the most commonly cited goals for having CC&Rs is to preserve and increase property values in the area.
But there is a much more important reason for having them - To make the area and the community a great place to live.
For that to happen, though, everyone must follow the restrictions. That, as we’re sure you know already, isn’t always the case. Some HOA residents do not think that covenants or restrictions apply to them. In such cases, the homeowners’ association must step in and enforce its rules.
In this guide, you’ll learn exactly how that happens. We’ll cover the exact CC&R enforcement process and discuss whether it is possible to enforce CC&Rs without an HOA.
So, let’s begin.
The CC&R Enforcement Process
Enforcing CC&Rs involves a series of steps that range from a simple notification and a request to resolve an issue to a lawsuit, depending on the escalating severity.
But the whole process starts with something else.
The enforcement process begins with regular inspections. An HOA manager will, typically, visit the area regularly and record any potential violations.
Only then, the manager would begin the enforcement process.
Here’s how it looks.
Step 1. Violation Notice
A violation notice is a document the HOA would send to residents found in breach of its CC&Rs.
The document’s purpose is to inform a resident that their property violates particular covenants or restrictions and offer suggestions for resolving the matter. Most notifications would also include a time frame for the HOA to expect the issue to be resolved.
In many cases, the manager would also include evidence of the violation - a photo and perhaps the corresponding paragraph from the HOAs declaration of CC&Rs - to help the person understand it better and realize the best corrective action.
Here is an example of a first violation notice sent to a resident.
Here is how a typical proof and explanation of the violation looks like.
Step 2. Violation Notice Follow-up
In the ideal situation, a notice would be sufficient to resolve the matter. Then, the resident would follow the HOA’s suggestions, correcting whatever aspect of their property does not adhere to the regulations, and the matter would be closed.
Unfortunately, it doesn’t always happen that way.
Often, the first notification gets ignored, forcing the manager to send follow-up notices.
These notices, typically, repeat the content from the first notification. However, the manager might also add information about potential next steps should the issues remain unresolved.
A side note: Tracking violations and issuing notices is, by far, the most tedious aspect of the HOA manager’s job. Even violation entry or keeping track of who’s been notified about the violation and at what stage the issue is right now poses a problem.
That’s why we created HOALife, to help associations streamline labor-intensive rules enforcement.
In a case of more severe violations, the board would set up an administrative hearing to discuss the issue and determine the most applicable next action.
These actions might include:
Implementing a self-help remedy, where the HOA decides to take action to resolve the violation
NOTE: The resident found in violation has a right but no obligation to attend the meeting and present their defense.
Step 4. A Lawsuit Against the Resident
Now, litigation always seems an extreme action to take. But, unfortunately, there might come a situation where HOA is left with no other choice but to proceed with a lawsuit.
In this case, the violation is heard by the court that gives a formal legal judgment.
It’s worth noting that the ruling is binding on both sides. The court might decide against the violator, of course. But it could also deem the violation impossible to enforce, thus ruling against the HOA.
In either case, the ruling stands and is legally binding.
Because a lawsuit is the last resort, there are certain considerations that an HOA should make when considering such a move:
Does the cost of the litigation outweigh other means of enforcing the regulation?
Would it still be possible to enforce the issue without entering the legal system?
Does the association have the affirmative duty to enforce the particular regulation?
Another factor worth considering is whether the whole matter does not relate to an abandoned restriction?
Abandoned restrictions are those that the HOA has been lax in enforcing over a prolonged period of time. In such a case, the court might rule it and assume that the association has waived its rights to enforce it in the first place.
This would, naturally, mean ruling against the association, and such a case would only accrue unnecessary costs to the organization.
Finally - Is It Possible to Enforce CC&Rs Without an HOA?
So far, we’ve been discussing enforcing covenants and restrictions by the HOA. But what if there is no association in the area, or even if there were, it’s not been functional for a while?
Is it still possible to enforce certain CC&Rs? After all, residents might face various issues, from noise complaints to rubbish on a driveway and more.
Well, in general, yes, homeowners can enforce CC&Rs. That said, the situation is different in various states.
For example, in some states, the law stipulates that CC&Rs dissolve with the HOA. So, if the association is no longer active, its restrictions no longer apply.
However, in many states, CC&Rs are deeded with the property. So, even though no HOA is operating in the area anymore, covenants and restrictions are still enforceable.