Using self-help to enforce HOA covenants: Can’t we just go onto an owner’s property and do it ourselves?
Covenant enforcement. It seems simple enough. Politely ask folks to cooperate, act civilly toward each other, and abide by a few easy-to-follow rules that exist for the benefit of the community. Easy as pie.
If only it were that simple. Unfortunately, the task of enforcing covenants is rarely as easy as it seems, due in large part to a minority of homeowners who abide by the adage that rules are made to be broken – or at least disregarded. Thus, Indiana homeowners associations and condominium boards are often left to scratch their heads and determine how to undertake what is probably the most arduous task of an HOA board member. How do we enforce the darn covenants? Are they even worth the paper on which they are written?
As a homeowners association attorney, one question I hear frequently is whether the board has the right to enter someone’s property and correct a violation themselves. Not uncommonly, a community’s covenants and restrictions will have language providing that the association has this right in certain circumstances. This is what we homeowners association lawyers commonly refer to as a “self-help” provision.
Before resorting to such action, the board of directors must first determine whether the community’s governing documents (i.e. the covenants and bylaws) clearly authorize the board to enter someone’s property to correct a violation. The powers of a board are delineated in the community’s restrictive covenants, and if the covenants do not provide authority to enter someone’s property to correct a violation, then such power likely does not exist under the law. Boards should never simply assume they have this power, as going onto someone’s property without permission could expose the association to liability. Doing it yourself may seem like the fair thing to do, but keep in mind that “seemingly fair” often equates to “violation of the law.”
Similarly, the board needs to clarify whether there are limitations to such power. For instance, a covenant stating that the board may enter someone’s property to clean, mow or weed an unsightly lot does not give the board the power to remove someone’s shed or tow someone’s boat. Acting beyond the scope of the board’s powers can cause legal issues, and the board must ensure they are not overstepping their bounds.
Also, keep in mind that the ABILITY to take a certain action does not mean the board SHOULD take that action. Indeed, overzealous enforcement of covenants can lead to a myriad of issues, including liability exposure, prolonged litigation, community polarization, distrust of the board, and even physical violence.
One notable risk to the board and property managers is that the homeowner may call the police and make a trespassing claim. It is not the job of the police to uphold a community’s covenants, and they will typically tell the association or its contractors to leave the property, regardless of what the covenants say. In some cases, the police may even issue a citation. Worse yet, a homeowner may try to “defend” his or her property by the use of physical force or weaponry. This is no joke. Take the threat seriously. No covenant violation is worth risking someone’s life.
If that is not enough of a cautionary note, keep in mind that judges often see self-help recourse as draconian and unnecessary vigilantism. Thus, if tested in court, a judge may decline to award the association the costs it incurred due to disagreement with the aggressive approach utilized by the board. This is important to note, as the costs incurred in rectifying a violation could be significant.
Candidly, I rarely advise association boards to utilize self-help. The risks typically outweigh the benefits. Instead, in cases where an owner has not responded to multiple violation notices from the association and the association’s attorneys, I recommend pursuing a court order. Also known as an “injunction,” this is an order for the owner to “do something,” “cease doing something,” or take whatever action is deemed necessary for him or her to be in compliance with the covenants. Such relief can include an order giving the association the right to enter an owner’s property to correct the violation. Once a court order is in hand, the association can enter the property with assistance from the sheriff’s office, and the risks are therefore diminished. Generally, a community’s declaration of covenants or bylaws will permit an injunction lawsuit, and typically those documents will authorize recovery of any costs and attorneys’ fees incurred. On that note, courts will generally enforce unambiguous rules and covenants against the owner. While this process is lengthier than simply going onto someone’s property, it is less risky.
If the board feels compelled to take the law into its own hands, then caution must be exercised at every turn. The board should ensure that specific notices regarding the violation and the board’s intent to enter the property are sent to the owner in advance. Likewise, the board should take photographs of the violation for documentation purposes. Finally, because it cannot be emphasized enough, boards should ensure the covenants or bylaws specifically authorize the action they are taking.
Keep in mind that many homeowners will comply – albeit grudgingly – when they receive a letter from the homeowners association’s attorney. To that end, association boards should opt for a more civil means of enforcement before resorting to self-help or litigation. While a courtroom may be inevitable in certain circumstances, it is better for the community to avoid litigation if possible. Yes, the board has a duty to enforce the covenants. However, that does not mean acting recklessly or resorting to maximum enforcement in every case. Above everything, the board of directors is required to act in the community’s best interest, financially and practically. Exercise of risk management and common sense is always advised.
And, when in doubt, contact an attorney who represents homeowners associations and condominium associations. Yes, I’m biased.