Cost of a Covenant Violation Lawsuit

Here in Georgia the law is very clear. We have 2 years from the date of a covenant violation in which to file suit. The clock starts when the violation occurs, and not when it is discovered. So if we don't notice a prohibited chicken coop in the back yard for 18 months, we would have only 6 months left to take action.

A continuing violation is something that is repeated. For instance, we have a prohibition on parking towed vehicles in the community for more than 72 hours at a time. If someone parks their boat trailer in their driveway the 2-year clock starts ticking. If they take the boat out of the community and then return it, the clock is re-started and we have a fresh 2 years to file suit.

Lawrence:
I disagree with Melissa about entering property and fixing something. There are trespass laws and if a homeowner calls the police and tells them a contractor is trespassing on his property, the police will ask the contractor to leave. Before entering anyone's property you must get a court order proving that you have the right to enter that property.

Regarding the effectiveness of fines, I've seen Boards take the offender to small claims court to collect the fines. This sometimes is enough of a nuisance for the homeowner that they then comply.
Jeanne

Lawrence:

Not sure what the law is here in NY but as President of my association I would NEVER direct any contractor to perform work on a house or unit without proper legal authority and IMO police presence. IMO simply the prudent thing to do. Here many folks don't bother to read the law they might shoot first and then find out if it was legal to do so. At the very least you might have some teeth knocked out.

You would be placing not only the property but the contractor in a potentially serious and harmful situation. I would not put any of the contractors that serve our property in that position.

Several years ago we had a water leak in a unit where the owner was away in Florida. We isolated the source to this unit and I instructed the MC to call the local police, I contacted a locksmith and we entered the unit with the police present. The problem was fixed the unit secured and the police left.

To advise otherwise is IMO simply nonsense both legally and realistically.

As to this matter I would continue to fine the unit owner for the violation, if in fact this is a matter worth enforcing, and let that bill increase over time and not consider going to court for the legal system to force compliance. Simply to costly.

Good luck.

Laurence,
My point is........ is the issue the home modification was not approved properly? Easily fixed.
Or is the issue the modification is completely against the CCR/Bylaws? Not so easy.

There is a HUGE difference.

John,

Our collection process for overdue assessments is very similar and we have exercised it successfully several times.

I was astonished to find out that a covenant enforcement lawsuit differs so much from this simple process.

The lawyers must go through much more effort to prove that a covenant violation exists, than they do for simple non-payment of dues.

Our attorney will not defer the much larger cost of a covenant enforcement lawsuit, so we need to put up $10,000 up front to go to court.

John,

You are absolutely correct. It does come down to taste. There must be people out there who think plastic pink flamingos are the perfect lawn ornament.

And this is the foundation of covenant restrictions for most HOAs.

Our covenants read that, "The Architectural Review Committee shall be the sole arbiter of such plans and may withhold approval for any reason, including purely aesthetic considerations..."

So do we abandon any decisions based on taste and preferences? Do we allow the purple house with green trim? Or do we have a representative cross-section of the homeowners serve on the ARC and enforce a collective aesthetic on the neighborhood?

This goes to the heart of the purpose of an HOA.

I personally think there is value to having a set of standards -- even if they are solely based on aesthetics and subjective judgment.

Larry

I think there are several issues going on here. One is a clear violation of the CC&R's by not passing the changes by the ARC. Another seems to more subjective as in a matter of taste concerning the changes. This leads us to the main issue of how far does/can one go to prove a point especially if that point is open to interpretation such as in matter of taste?

Even if I had the authority to put my HOA in debt/financial trouble, I could not do so with a clear conscience concerning an issue I consider could be subjective unless I had their "agreement" to do so. Afterall, the owners control. We on the BOD/Committees are here to serve them.

I know people that won every battle they ever fought but lost every war they ever fought and to this day they have not figured out what happened.

I believe the root of this issue is one where some could easily cut their nose off to spite their face.

Now for the bad news about attorney's fees.

Most contracts, including CC&R's, provide that in the event of a lawsuit that the prevailing party will pay the other party's costs. Most state laws provide the same thing for contract disputes. The provision for attorney's fees is often stated as "reasonable attorney fees."

Despite the contractual and statutory provisions, the trial court judge usually has a lot of discretion in deciding whether to actually award attorney fees and in what amounts. Among other factors are the relative wealth of the parties and whether the litigation could have been avoided as well as the judge's own personal prejudices and biases. Attorney fees are probably the biggest crap shoot of all in a lawsuit. Unless there is a clear abuse of discretion, appellate courts usually will not overrule the trial judge's award (or lack of award) of attorney fees.

I would think that if the HOA has tried to work with the offending homeowner and he has refused all attempts at gettin him to comply with the CC&R's that a judge would find that the litigation was unavoidable. Ditto if the homeowner chooses to fight it out in court.

As always, though, your attorney's advice will trump mine.

BTW, I lost the biggest lawsuit that I was ever involved in. The prevailing party asked for over $150,000 in attorney fees. The judge awarded them zero. A large factor was that the case had been dismissed in its early stages, I won an appellate court ruling stating that the case had to go to trial, and most of the other party's costs were overkill in preparing the case for trial. If they had offered me that $150,000 to settle I would have taken it but the other party hired an attorney with a reputation for litigating everything. For example, in a pre-trial hearing in the judge's chambers I stated that an event had occurred on an indefinite date during the spring and the the opposing counsel correctly pointed out that the event occurred in February; he then wasted a lot of the court's time arguing over the irrelevant point of whether February in Phoenix is springtime. I am sure that the attorney's combative disposition had a lot to do with the judge's decision to award the other side nothing.

No, I am not an attorney. I have represented myself for the last 35+ years. I should have made it clearer that I was the plaintiff in the case I referred to.