CC&R Enforcement and Remedies

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

Examples of CC&Rs

Homeowner association (HOA) covenants are more common in newer properties or planned communities. Covenants can restrict property use both inside the home, outside the home, and on the land. Common covenants, conditions, and restrictions include:

• Landscaping maintenance
• Exterior paint color and trim palettes
• Fencing materials and heights
• Pet size, breed, or weight restrictions
• Restrictions on parties and gatherings

Requests for Variances or Exemptions

Covenants are created by homeowners' or neighbor associations. Internal notice and hearing requirements will be spelled out in the covenants themselves. In most states, the HOA covenants are recorded at the Recorder of Deeds office for public review.

It is important to remember that homeowners' associations cannot evict residents, remove personal property belonging to residents, or violate residents' personal rights in attempting to enforce covenants or control alleged violations.

If the homeowner wants to do something that is restricted by their restrictive deed covenant, the homeowner must make a request for exemption or variances from CC&Rs.

Variances

The most common and easiest form of attempted compliance with HOA CC&Rs is to request a variance. A variance is a request for permission to depart from the literal requirements of a covenant. Variances are usually granted where enforcement would cause undue or unfair hardship on the requesting individual or resident.

Examples of a variance may include outdoor lighting at night for vision-impaired residents, pets that exceed the size limit, or keeping extra vehicles on the property or street.

Association Hearings

Almost all requests for variances are handled by hearings before the association. Notice generally goes to all other residents, or at a minimum, to residents whose properties may be affected by a committee or board decision.

Alleged violations of existing covenants are generally first handled by progressive action. After verbal and written warnings, as outlined in the covenants, associations will generally hold hearings on the matter. Alleged violators will have this forum 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. Decision and resolution are generally controlled by vote.

Court Enforcement of Violations

For alleged violations that are not resolved, associations may decide to bring legal action against a resident for enforcement of a covenant or specific performance. A court of law that has jurisdiction over the parties and the subject matter may render a formal judgment for or against the resident.

Courts cannot enforce covenants for which they cannot find a binding contract between the parties. The petitioning party must be able to show that the resident, in agreeing to the covenant, received some form of consideration in return for the promise. This may be inferred from circumstances evidencing increased property value. 

However, in some cases, it can be a problem for the association if its cause of action is not properly articulated. To overcome this possibility, associations tend to back up their lawsuits with citations of common law that parallel the covenants, e.g., public and private nuisance, interference with the use and enjoyment of property, disturbance of the peace, etc.

Courts of law may award monetary damages, impose injunctions, impound vehicles, or compel removal of personal property such as pets, in upholding CC&Rs. They may empower the association itself to take action, or compel relief through other resources, such as local police. However, the association cannot use "self help" to enforce CC&Rs.

Legal Help With CC&R Problems

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