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Is Spring Covenant Enforcement Season?

Updated: Joseph A. Bucceri – February 4, 2021

With the arrival of spring, Associations and their managers are faced with the daunting task of ensuring that the communities they manage are kept in a condition consistent with the Declaration and Rules and Regulations that Cartoon house with messy lawnenhance the community and property values for all. There are several things that can be done as the growing season begins to help ease the stress associated with the return of the growing season.

It is always a good idea to provide the owners with an update of their landscaping and maintenance responsibilities. A short letter advising owners of their maintenance responsibilities serves as a reminder and an initial notice of the importance of keeping the community clean, attractive, and ensures that property values remain high for all members of the community.

Despite this friendly reminder, there will be some owners who fall behind on their maintenance obligation requiring the Association to take action. These situations should be addressed by sending the owners a notice of the issue and asking that it be addressed in a timely fashion. At this stage, it is important to avoid future pitfalls and provide as much notice as possible and thoroughly document the situation.

This initial notice should be precise and explicit about how the property is in violation and what steps must be taken to bring the property into compliance. Instead of stating that “the landscaping is not kept in a sightly condition,” try something closer to “there are weeds growing on the property, and the grass must be cut to no higher than 4 inches, and the dead grass and dirt patches must be replanted with grass seed or sod.” Inclusion of pictures can also be helpful. Attaching a picture of the dead tree or overgrown weeds pinpoints the specific violation.

These steps not only assist a homeowner in identifying the offending landscaping or other violation, but will also help to protect the Association from possible defenses in the future. A well-documented violation is much easier to prove in court, should that become necessary.

In the event it is necessary to involve the Association’s attorney, there are several things that can be done early to ensure that the issue is resolved quickly and to help keep costs low. When the decision is made to involve legal counsel, the referral should include all information that has been obtained relative to the violation, including violation and fine notices, photographs of the property, and any communication with the owner regarding the violation.

Once the matter has been referred to legal counsel, the first step is to draft a demand letter to the owner laying out the violation, the authority granted by the governing documents, and the specific steps necessary to bring the property into compliance. Again, the more specific the violation notices to the owner are, the more specific legal counsel can be in their demands. Since the attorney likely knows nothing of this property beyond what is provided in the referral documents, being clear on what the Association is asking for can assist the Association in moving the matter toward resolution. Most often this is enough to educate the owner about the violation and obtain compliance.

If the Association is aware that a property in violation is up for sale, the Association can protect its interests by recording a notice of covenant violation. While the current owner may be aware of the violation, potential buyers likely won’t. Recording a notice of covenant violation puts potential buyers on notice that a violation exists, and provides a basis of the violation. This aids in obtaining compliance as sellers don’t want the violation to interfere with their sale. It also helps in obtaining compliance from the new owner, as they will be aware of the violation prior to their purchase.Words - violation notice

Once the notice of covenant violation is recorded, a letter with a copy of the recorded notice of covenant violation should be provided to the owner, requesting that the property be brought back into compliance.

Sometimes a letter from counsel isn’t enough to gain compliance. For the more difficult situations, it may be necessary to file a lawsuit in County Court to enforce the Covenants. The Court can order that the owner bring the property into compliance, or for particularly intransigent owners, even empower the Association to enter the property to remedy the violation itself, at the owner’s expense.

In order to ensure that this process is successful, it is imperative the Association continue to document the violation and update legal counsel with photographs. Most of these cases are resolved without the need for trial, but it is always good to be prepared with the necessary evidence and testimony.

Some Associations begin sending violation notices, and even fines, in the spring and summer, but as autumn approaches and the growing season wanes, they are unwilling to move forward to enforce landscaping violations. This can often be a mistake. If a homeowner is willing to ignore multiple notices and fines this summer, they will likely do so next spring as well. By referring a matter to legal counsel for enforcement, the Association does not need to start from square one the next year. While the legal process can take some time to play out, and a resolution of a case may not come until mid-winter, a court order requiring an owner to fix a violation as soon as warm weather returns is much easier to enforce than another notice of violation.

 

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