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Subject: Covenants, Rules, Overgrown Yards

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DanielJ
(Georgia)

Posts:6

04/17/2008 9:44 AM
My HOA is in GA. The web site is pinecrestathens.org. Our covenants prohibit "nuisances" (#11) and "restricted activities that tend to detract from the aesthetic character of the property...(#21). My conclusion is that overgrown yards are in breach of these 2 covenants. In order to enforce these covenants, we need appropriate "rules" which are decided by the board without a member vote. Is this correct so far? Question: Since overgrown yards are a problem in our subdivision, can the board add to the "rules" that the HOA will: 1. Mail the offending property owner a notice to cut their grass by a reasonable deadline? 2. Incorporate in the notice that failure to cooperate will result in the HOA having the grass cut and then billing the owner for same? If I'm way off base here then can you please suggest how we can legally approach the overgrown yard issue? Thank you very much for all your help. This web site is the best.

BrianB
(California)

Posts:1646

04/17/2008 11:36 AM
#1 sound good, #2 will cause folks to tell you to be careful, as you may be trespassing on private property in order to cut it. I would also advise you search for any city or county ordinances regarding weeds, noxious weeds, etc. You may be able to use them to prop your arguement.

BradP
(Kansas)

Posts:1742

04/17/2008 12:20 PM
Daniel: I like Brian's suggestion of searching for a city ordinance, anytime you can get the city or county to do the dirty work for you I would do that. #2 needs some work, the last thing you want to do is start cutting someones grass and a lunatic with a shotgun appears out from the house mad as heck.

MaryA1
(Arizona)

Posts:1888

04/17/2008 4:29 PM
Daniel, It appears to me you're on the right track! The BOD needs to define #11 & #21 of your restrictions. Once defined they should be mailed to each member so they will know exactly what is required of them. It would be wise to remind the members that the board has the authority to come onto their property to perform landscaping functions if they refuse to do so, but first I would suggest searching your CCRs to see if the BOD has the authority to perform the maint. if the member fails to. When this authority is given to the BOD it's generally made with the stipulation that the member must first be informed that the board will cause such action to be taken at the owner's expense if they fail to do it within a specified period of time. If the action is not taken by the date specified the assn has the authority to perform the service; however it might be wise to notify the owner on which day the landscaping crew will be coming out to his property.

DanielJ
(Georgia)

Posts:6

04/17/2008 6:36 PM
Our present covenants, bylaws and rules do not address remedial action for overgrown yards. (I thought they did.) I guess my question is can the Board of Directors of the HOA, without a quorum of all the association's property owners, create a "rule" whereby the HOA can have overgrown yards cut and then bill the owner? Or is this a "covenant" issue which would require a quorum vote of all the members? My understanding is that all the association's members must have the chance to vote on "covenant" changes but "rule" changes can be the board's decision.

GlenL
(Ohio)

Posts:1301

04/17/2008 10:40 PM
The power to set the standards may be under the ACC clauses but they should be there somewhere; if you do not have the authority to correct a deficiency how about a fine instead? (See Fining - Statute of Limitations? By PamS4 who is also from Ga. Especially the advice of JosephW) If you set the rule get the H/O involved, have a meeting and tell them what you are trying to do and why and get their input. Even though it will ultimately be a BOD decision if the H/O's feel involved in the process IMO it makes it easier to enforce rather than some rule that is just handed down. Makes it harder for the scofflaws to scream that they're being picked on arbitrarily and gets everyone involved.

MaryA1
(Arizona)

Posts:1888

04/17/2008 11:07 PM
Daniel, I certainly agree with Glen that it's wise to get the homeowners involved with the Board's rule-making process. However, I would thoroughly check the CCRs to see if this power has been granted to the board. Many assn CCRs state the board has the power to adopt rules; some may require a vote of the members, but I believe most don't. If your docs are silent on this it may be wise to amend the CCRs to include this provision. But I would strongly suggest the requirement for a vote of the members on all proposed rules be included.

DanielJ
(Georgia)

Posts:6

04/18/2008 8:10 PM
Thank you all so much for your great advice. I just have one more question. Our covenants only address fines as they pertain to the yearly assessment and special assessments. But our "Enforcement" section says "enforcement shall be by proceedings of law or in equity" against covenant violators. What does "in equity" mean? Is that a legal phrase giving us the right to fine covenant violators?

DanielJ
(Georgia)

Posts:6

04/20/2008 9:10 PM
Immediately preceding post transferred to thread entitled "Ability To Impose Fines" as I was afraid it might be overlooked on this thread. Thanks.

MS3
(Indiana)

Posts:5

04/21/2008 7:44 PM
Hope someone can answer this for me...... What does it mean to to make a provision for "default" in the covenants? Who does it favor the board not taking action or is the default against a homeowner not taking action?

StevenW3
(Oklahoma)

Posts:64

06/08/2008 12:46 PM
In my experience using the city/county to enforce this type issue is much better for the HOA in general. The city will have the city attorney and lien ability behind them and it will be much harder to ignore. Our particular by-laws allow the HOA to come onto your property to inspect and/or correct violations if warranted.

JohnK3
(Pennsylvania)

Posts:317

06/09/2008 9:32 AM
Daniel, Long, long ago, in a country far, far away - England in this case - there were two types of Courts: those of Law and those of Equity. Law dealt with statutes and formal rules, Equity with, vaguely, "fairness." USA state law, 'cept for Louisiana, is based on English law. Today, we don't have that distinction any more, but the term still shows up and the concept will be considered by our general civil courts. For those of you who might wonder, Louisiana law is based on France's original Napolionic Code.

GloriaM
(North Carolina)

Posts:772

06/09/2008 1:25 PM
Daniel: Enforcement according to GA State laws, recently in NC Appellate court an HOA won for the enforcement of maintaining lawns. Therefore if it were pursued in the courts I am sure if you afforded the Owner the right to a Hearing/Mediation before the Executive board and you kept accurate documentation and the courts found you (the board) to be fair and reasonable the HOA would come out the winner. Be sure to follow your CCR's and state laws.

Dr. Gloria J. Martinez, CFO Official HOATalk.com Sponsor Author of "A Guide to Community Living" Faith Management Services, LLC (North Carolina) (704) 799-3791 www.FaithManagementServices.com *See legal notice below (end of page) or go to www.hoatalk.com/legal

KirkW1
(Texas)

Posts:915

06/11/2008 7:39 PM
I would read what you quoted as to mean that you do not have the authority to fine the homeowner. Further, that you can not mow the lawn and then send the HO the bill. What you would be required to do is file a civil suit against the owner. The good news is that in most areas this need not be expensive as some make it. The name of the court varies from state to state. Some call it "small claims court." In Texas it is called "Justice of the Peace Courts." At any rate, you can go to findlaw.com and type your state name followed by "small claims" to find out about it. Most likely you would want to sue the HO for enough to cover your fees and the cost of mowing the lawn. In most states these cases can be heard (and are regularly) without the use of a lawyer. Just be aware that the defendant may choose to have representation. All the same, normally you can get some guidance along the way and you need not be a lawyer to successfully make your case.

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