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Managing association covenant violations can easily be compared to the popular game show, “Jeopardy.”  Answers to the basic questions are easy, such as how to deal with an owner’s grass being too high or trash can violations.  As you progress through the game, however, you find the issues become harder and more complex.

While covenant enforcement is not always so black and white, and restrictions for every community can be different, there are some basic guidelines that will make navigating through these issues a little easier.

Identify what is curable and non-curable

Before you act, know how to classify the violation.  According to the new Texas Property Code 209, which applies to single family association, violations may be classified under one of two categories:
  1. Curable violations are those which can be rectified, such as parking violations, ongoing noise violations (e.g., barking dog) or an architectural modification without approved plans.
  2. Non-curable violations are one-time events, for which it is not possible to give prior notice, and include things like shooting fireworks, property damage, having an unapproved garage sale or other event that is prohibited by the governing documents.
Owners must be given the opportunity to remedy curable violations before action may be taken by the HOA. How many notices the resident receives is up to board discretion, but the typical allowance is 1-2 notices before the certified letter is sent; the letter allows 30 days for compliance, opportunity for a hearing and/or to cure, request to be notified if owner is on active duty, and exactly what the violation is and how to cure it. Alternatively, non-curable violations are considered one-time events and the HOA may immediately address the violation if allowed in governing documents.

Be prepared for a board hearing

As noted above (and in Texas Property Code 209), the Owner has a right to a Hearing prior to the association moving to the next step to remedy the violation (such as self-help, attorney referral, fining, etc.), as long as they ask for the hearing in writing thirty (30) days after receiving the certified letter.

When this happens, here are a few best practices to help guide the meeting. 
  1. Let the owner be heard.  Explain in an introduction the reason for the hearing and that everyone is there to allow the owner to state their case. The owner should then be given adequate time to present their point of view, including any supporting evidence.
  2. Board does not have to engage in debate.  It’s not necessary nor advised for the Board to enter into dialogue that could be used later if the issue escalates to a legal court. Questions for clarification are okay as long as they are clear and don’t lead to a back-and-forth discussion. As a best practice you should allow the owner to speak and then wrap the conversation with a question like, “have you presented all of your evidence regarding this matter today?” If pushed for an answer or position, then simply reply, “We are here to listen and gather information, and we will consider it and be back in touch with you.”
  3. Board members are there to listen - NOT argue.  Never debate issues in front of the owner.  If the board is not in agreement, then they should take a few moments to conduct an executive session and step away from the hearing for discussion.
  4. Reaching a resolution The Board does not have to give a timeframe for response. However, in some cases the board may feel the owner is sincere in wanting to resolve the issue and can choose to enter into immediate settlement discussions. In this event, be sure to officially state that you are recessing the hearing and that the conversation moving forward is for “settlement purposes” only.

Supporting your case and preparing for legal steps:

It’s important to be prepared in the event that violations continue to escalate and you must seek professional legal help. Here are a few things your legal counsel may suggest to help develop your case.
  1. Offer a chance for owner resolution. It’s important that you provide notice to the resident and an opportunity to cure the violation before seeking legal counsel, as mentioned above.  Showing a best effort to resolve the situation upfront will demonstrate good faith if it does go to court and will help with recovering legal fees.
  2. Statute of Limitations. Before filing a legal claim be sure this issue doesn’t fall under the Texas 4-year statute of limitations for covenant enforcement. If it has been a long-term, lingering violation the owner may have a statute of limitation defense, which is why it’s critical to address violations as they occur.
  3. Make sure you have evidence. Date stamped photos and notes from consistent, regularly scheduled property inspections are often the most reliable forms of evidence.
  4. Neighborhood witnesses. While testimony from other residents may appear to be a good source for evidentiary support, there are things to consider. An affidavit or live testimony may be required from the resident at some point and there is a chance that resident could change their position and withdraw support if it comes to admitting it in court, making this option a less reliable source of evidence.
Pursuing association covenant violations doesn’t have to be complicated. Partnering with your management company to establish best practices can really make a difference when coming up against the more difficult situations. Consider taking time at the next board meeting to lay out a strategy for these kinds of scenarios. For additional information on managing covenant enforcement contact FirstService Residential. 

Contributing source:  Elliott Cappuccio, Attorney
Pulman, Cappuccio, Pullen, Benson & Jones, LLP


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Friday June 03, 2016