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Subject: Short term violations, repeatedly
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Author Messages
GaryM15
(North Carolina)

Posts:63


12/26/2017 12:06 PM  
Our neighborhood is bound by a set of covenants, but is not an HOA. We can't levy fines or other penalties.

The covenants say "Enforcement shall be by proceedings at law or in equity against any person or persons violating or attempting to violate any covenant either to restrain violation or to recover damages."

We are trying to write a set of amendments that make sense for us.

For instance, if the covenants don't allow boats to be parked in the yard or driveway, how is this enforced?

Suppose we start proceedings against a violator. By the time we have a court date set, the boat is removed.

1) Should we drop the proceedings?
2) Is there any way to recoup the money we've spent?
3) Would this money be considered damages?
4) How can we prevent this violation from happening again and again?
5) Could the courts issue a ruling against future violations? (same person...same boat)

So far, this is hypothetical. There are several similar items that need to be covered or ignored. We're just trying to write a workable set of covenants.



SheliaH
(Indiana)

Posts:2206


12/26/2017 1:10 PM  
Since your community isn't a HOA, it appears any homeowner can sue another for violating them. As part of that lawsuit, you should be able to request reimbursement of all expenses incurred in bringing the lawsuit. Of course, it's easy to sue someone - the real questions are (1) do you have a good chance of winning and (2) will you be able to collect.

Virtually all of these questions are of a legal nature, so you need to do this right and talk to an attorney since most everyone here isn't an attorney. Besides, what works in your state may not apply in another and vice versa. As for hypotheticals, they can go either way, so if you want to enforce these covenants, you need something on solid ground to work with. That may mean going through the time and expense of putting together a HOA which might be able to enforce the covenants collectively. However, you may need buy in from all the homeowners and if this wayward boat owner says "hell naw" you're back to square 1.
TimB4
(Virginia)

Posts:15823


12/26/2017 3:11 PM  
Posted By GaryM15 on 12/26/2017 12:06 PM

The covenants say "Enforcement shall be by proceedings at law or in equity against any person or persons violating or attempting to violate any covenant either to restrain violation or to recover damages."




Gary,

That is the same language we have.
That is also the same language the Virginia courts ruled upon saying that since the covenants specify how enforcement is to take place, no other enforcement options (monetary penalties) may be utilized as to do so would have the Board exceed their authority.

Therefore, if you desire to impose monetary penalties, I would strongly recommend that this be written into the covenants. I would also strongly recommend that any enforcement action proposed be reviewed by an attorney before sending it to the membership for a vote.

In looking at some NC covenants, I actually saw one that specified any owner shall have the right to enforce. Based on that language, one could argue that since the covenants specified owner and not Association, that the Association does not have the authority to enforce. Hence, an example to run any proposed amendment by an attorney.

The language you state is the boiler plate language.

BTW, per the applicability section of North Carolina Planned Community Act, the act appears to apply to all communities in regards to amending the Covenants. Be sure to check that out to see if this holds true with your community.

Also see: Residential Planned Communities and Condominiums: Changing the Rules After the Game Has Begun

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Forums > Homeowner Association > HOA Discussions > Short term violations, repeatedly



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