Top Four Takeaways of Effective Covenant Enforcement
1. CURABLE vs UNCURABLE VIOLATIONS
- Owners are entitled to receive written notice and an opportunity to cure all "curable" violations. Violations of this type may include parking, lawn maintenance, property improvements without gaining prior Architectural Control Committe (ACC) approval or ongoing noise violations.
- Uncurable violations are typically one-time events, for which advanced notice cannot be given. Examples of these violations would include any threat to health or public safety, fireworks, property damage, or hosting of unapproved events prohibited in the governing documents.
2. STATUTE OF LIMITATIONS
- In Texas, the statute of limitations to enforce a covenant violation is four years. If a board chooses to file suit to enforce a covenant violation, it must do so within four years of discovering the violation. If not, the owner may have a defense against the legal action.
- Best practice is to send notices to owners before sending an enforcement issue to attorney; this shows an effort to resolve the problem by the board. Formal notice is necessary to trigger recovery of attorney's fees for property owners' associations under chapter 209 of the Texas Property Code, and for condominium associations, such notice is required to fine and comply with chapter 82 of Texas Property Code.
3. DOCUMENTATION IS CRITICAL
- Remember, most violations are documented during property inspections or inspection drives and typically only consider what is visible from the street. If possible, violations should be documented with date-stamped photographs, video or audio recordings.
- When enjoined in a suit, board members and representatives should avoid "he said/she said" disputes. Many of these arguments can be circumvented by simply maintaining detailed objective evidence.
- Be careful when using neighbor statements as evidence. While such statements can show that other residents agree with the board and the violation is not a vendetta, using witness statements can be seen in court as unreliable if not documented appropriately. Consider having a witness sign a formal affidavit.
4. COVENANT ENFORCEMENT HEARINGS
- Let the owner be heard. Allocate a reasonable time frame to let the owner present a grievance and notify the owner prior to the hearing how long this time frame will be.
- The board does not have to engage in a debate. Listen to the presentation, but do not argue the issue. Save additional discussion for "settlement purposes only", as covered under section 408 of the Texas Rules of Evidence.
- Remember: Owners may have recording devices and do not have to announce such devices are present . In Texas, only one party must consent to recording.
Takeaways provided by:
Elliot Cappuccio
Pulman, Cappuccio, & Pullen, LLP
Attorneys at Law
Pulmanlaw.com
This article is a general summary of the information shared at the Mastermind Seminar on Covenant Enforcement & Compliance in September 2018 and should in no way replace advice of legal counsel. If you have further questions about any of the topics above, please contact your attorney for clarification.