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Enforcing Covenants Under HB 22-1137 – *Winter is Coming*

You don’t have to put your covenant enforcement matters on hold just because winter weather is here. Give a cure deadline of May 1st to keep the ball rolling and keep enforcements in check!

For many single-family homeowner associations, the end of the year signifies the end of the covenant enforcement cycle. Violation notices for poorly maintained lawns and overgrown weeds will not be issued again until the Spring since grass and weeds don’t grow under fresh powder and freezing temperatures. But how do you deal with the intransigent homeowners who refuse to properly maintain their lawns year in and year out?

HB22-1137 (“1137”) has changed the way associations evaluate and conduct enforcement procedures. 1137 created significant hurdles for associations to effectively enforce their covenants, such as the requisite for specific notice requirements – which now mandates two thirty-day cure periods and requires the association to inspect and notify the unit owner once the property comes into compliance.

Previously, many associations would close their landscaping violations at the end of the growing season and then reopen the violations in the Spring if the offending home is still in violation. A question raised by 1137 is: if you close a violation, do you have to notify the owner? Yes, the association is no longer pursuing the violation, but not because it was fixed. The violation is no longer being pursued because no one is planting grass in December.

So, how can an association comply with HB 22-1137 and still protect itself by enforcing its covenants?

A notable option that associations can consider is to keep uncured landscaping violations open throughout the winter season instead of closing them. There is nothing that requires the association to take legal action immediately after the end of the second 30-day cure period. Instead, for files that have already entered the covenant enforcement notice process, the association can merely issue a new notice of violation that provides for more than 30 days to cure. Again, 1137 does not prohibit longer cure periods, just shorter ones.

By keeping the violation open and setting a compliance date of May 1st (or whatever date is deemed appropriate) the association is keeping the covenant enforcement ball rolling (even if slowly). Thus, avoiding any of the ambiguities about continuing versus new violations, cure letters, and fines. It also means that if that property is still having the same problems in the Spring that it had the previous Fall, the association does not have to wait to consider referring the intransigent owner to legal counsel for enforcement.

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