How HOA Can Enforce Covenants

by Joe

Visitor Question: I'm under contract to purchase a property in a gated community that has an HOA (homeowners association) and have actually read all 42 pages of the "Restrictive Covenants" because I hate such rules and am, according to my wife, a "boundary buster". lol.

The only penalties I can find specifically spelled out in the covenants are that the HOA board can place a lien on your property if you don't pay your yearly HOA dues (and any speeding fines, which is the only thing there are specific fines for and which they can add to your dues). It also says that they can suspend your voting rights and use of the recreational facilities of the Association as long as the dues are not paid, and during the period of any continuing violation of the restrictive covenants after the board has declared you in violation of the covenants and:

that the Association or any party to whose benefit these Restrictions may inure may proceed at law or in equity to prevent the occurrence, continuation or violation of any of these Restrictions

as well as

In the event an owner of any lot in the Subdivision shall fail to maintain the premises and the improvements situated thereon in a manner satisfactory to the Board of Directors of the Association, the Association shall have the right, through its agents and employees, to enter upon said lot and repair, maintain, and restore the lot and the exterior of the buildings and any other improvements erected thereon.

My question is assuming I can live with losing my voting rights and use of the recreational facilities (which it would almost impossible for them to enforce anyway, due to the size of the development and number of facilities) would there be anything else they could do if I say, paint my house a color they don't like or put up a fence (which is prohibited) and they use the maintenance clause to repaint my house or take down the fence? Also if I cut down some trees, which is prohibited, what could they do, as there is no way I could put them back to cure the violation?

Editors Comment: First of all, we aren't attorneys, so take these comments for what they are, which is simply the experience of some city planners.

You probably made your decision about whether to purchase this property already, but it sounds as if you might be happier in a development or location without deed restrictions. There would be nothing wrong with that.

As to what the HOA can do, you would be correct in your whole analysis except for the portion that you quoted allowing the HOA or any other party benefiting from the covenants to "proceed at law or in equity to prevent the occurrence, continuation or violation of any of these Restrictions."

There are two types of courts in the U.S., a court of law and a court of equity. A court of law must follow the letter of the law, and every document that receives it power from the law (such as, perhaps, a set of covenants). A court of equity does what is fair and "equitable," with greater flexibility.

So in theory the HOA could go to court and ask for a wide and flexible array of remedies to keep you from further violating the covenants. They would have a good case, providing they can show a reasonable relationship between the proposed remedy and the cause of getting you to comply with the covenants.

Yes, this theory breaks down with some examples you can imagine. So yes, we don't know what they are going to do if you cut down trees. Maybe they would take away your chain saw. (That's a joke, folks.) But the point is that a court would have a wide range of options to see that it doesn't happen again, including handing down court orders.

It does not seem worth it to us, but you can make your own judgments.

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