How Enforceable Are Homeowners Association Covenants?

Condominium is a form of home ownership in which every unit owner, in addition to owning his dwelling, also owns a share of common areas like roads, recreation facilities, parking lots, hallways and elevators. A condo buyer automatically becomes a member of a homeowners association with its rules and responsibilities. Condo rules are established by state statutes and case laws and thus vary by state, but in general, the rules require unit owners to pay fees to cover maintenance of common areas and to obey bylaws and rules.

The board of directors of the homeowners association, or HOA, sets up the rules -- called covenants, conditions and restrictions, or CC&Rs -- that regulate the activities of the residents. Those CC&Rs and often a separate set of rules cover everything from the number of pets allowed, if any, to whether an owner can paint his unit, park a truck in the lot or install a satellite dish. The rules also generally address noise and disturbances that prevent neighbors from the "peaceful enjoyment" of their homes.

Not all homeowners association boards have the same powers of enforcement. It could be up to the discretion of the board to determine if an actual rule violation is taking place. The first step an owner must take in compelling a board to enforce a rule is to meet with the association board and present the evidence, along with the appropriate provision from the CC&Rs. Calling the infraction to the board's attention may be all that is necessary to get the rule enforced.

The HOA bylaws and CC&Rs should spell out procedures that must be followed before taking any action against a unit owner for violation of rules. The process generally begins with a letter to the homeowner allowing him time to fix the problem. The HOA board may have the authority to fine a violator for every day the violation occurs. The board or its representative can also enter the property to investigate the alleged violation or remove it. The board could also lift the owner's right to use facilities such as pool or tennis courts. In serious cases, the board can sue the owner to fix the violation and pay court costs as well. The court can award money damages, call for police action and even order personal property removed. The HOA can put a lien on the dwelling that must be paid before the home can be sold.

A condo board must not enforce a rule against one resident while ignoring violations of the same rule by other residents. Such selective enforcement is discriminatory. However, if a board ignores a rule violation for a considerable period of time, it has waived, or given up, the right to enforce that rule against the offending unit owner or any other owner guilty of the same violation. A state "statute of limitations" defines the amount of time that a rule violation can be ignored before it can no longer be enforced. A board that has allowed a rule to be selectively enforced or waived can reinstate the rule by announcing to the HOA membership its intention to begin strictly enforcing the rule.

While an HOA board can take legal action against a homeowner, condo owners have the same right to pursue justice against an HOA. A homeowners association is obligated to act in the best interests of the community and perform its duties fairly without discrimination. If a condo board fails to perform according its own rules or state laws, a homeowner or group of residents can file a lawsuit claiming that the HOA is failing its duties. Such lawsuits are expensive and time-consuming, and anyone considering such a suit should seek the advice of an attorney with experience in HOA litigation.