CC&R Enforcement and Remedies

CC&Rs stand for covenants, conditions, and restrictions. Buying a property subject to CC&Rs means that the new property owner agrees to follow certain restrictions on the property. Covenants for homeowners are a set of rules that regulate how property can be used. All neighborhood covenants include procedures for handling violations.

Examples of CC&Rs and Governing Documents

Home Owners Associations (HOA) and neighborhood association covenants are common in condominiums and planned communities. Covenants can restrict property use inside and outside the home. Declaration of covenants, conditions, and restrictions include language relating to:

• Landscaping maintenance
• Exterior paint color and trim palettes
• Fencing materials and heights
• Pet size, breed, or weight restrictions
• Restrictions on parties and gatherings in common areas
• Maintenance and related expenses, such as HOA fees

Restrictive covenants can have more limitations than zoning laws. Zoning ordinances might speak more generally to lot sizes and commercial versus residential use. On the other hand, covenants like deed restrictions in a common interest development can be specific. They might get into particular details regarding how real property must be maintained.

In addition to covenants contained in deeds, governing documents can also come in the form of bylaws. HOA board members (or board of directors) can pass rules for a building. These rules can address things like occupancy limitations or HOA fee assessments.

What Homebuyers Should Know

Covenants are created by homeowners or neighbor associations. They may be recorded at the Recorder of Deeds, County Registrar-Recorder, or County Clerk's office for public review. When correctly enacted and enforced, CC&Rs can help maintain or even increase long-term property values.

HOAs generally cannot:

• Evict residents
• Remove personal property belonging to residents
• Violate residents' personal rights in attempting to enforce covenants or control alleged violations

CC&Rs and Governing Documents can never violate state law or federal law. For example, a discriminatory rule that singles out a gender would be against public policy. It would also violate the Fair Housing Act.

Variances

Sometimes you may have trouble complying with HOA CC&Rs. If your situation is reasonable, you may be able to request a variance. A variance is a request for permission to depart from the requirements of a covenant. Variances are usually granted where enforcement would cause undue or unfair hardship on the requesting resident.

Examples of a variance may include:

• Outdoor lighting at night for vision-impaired residents
• Support pets that exceed the size limit
• Keeping extra vehicles on the property or street

Association Hearings

Almost all requests for variances are handled by hearings before the association. Written notice generally goes to all other residents, if their properties may be affected by a committee or board decision. Notice allows affected residents to participate in or raise objections in such hearings.

In general, alleged violations of existing covenants are first handled by progressive action. That means the HOA will try to escalate the situation slowly. First, they will issue verbal and written warnings. If a violation persists, associations will generally hold hearings on the matter.

Alleged violators can use a hearing to present their defenses or objections to the allegations. Some hearings are more formal in nature, in which residents may present witnesses or cross-examine those who allege violations. Decisions and resolutions are generally controlled by a vote.

Court Enforcement of Violations

For alleged violations that are not resolved, associations may decide to bring legal action against a resident. The action will either be for the enforcement of a covenant or for a specific performance. Courts may empower an association to take action. They may also compel relief through other resources, such as local police.

A court may issue a formal judgment for or against the resident. The judgment may require the resident to:

• Stop doing something, such as keeping an oversized pet
• Start doing something, like paying required dues
• Pay a fine or other monetary damages, like late fees or property damage restitution

Courts cannot enforce covenants for which they cannot find a binding contract. The plaintiff (the HOA) must be able to show that the resident agreed to the covenant. This may be inferred from circumstances evidencing that it was recorded or otherwise on the books.

However, in some cases, it can be a problem for the association to enforce a covenant. To overcome this possibility, associations tend to back up their lawsuits with laws. For example, a covenant relating to noise control may be rooted in nuisance law. In general, real estate laws prohibit behaviors that interfere with others' use and enjoyment of property. Most CC&Rs are enacted in this spirit.

Legal Help With CC&R Problems

You may have questions about covenants on your property. You may also have been accused of violations by a neighbor or your HOA. In these situations, a property law lawyer can offer legal advice. Contact a real estate attorney in your area to understand your rights and options.