Covenant Enforcement in Common Interest Communities

January 23, 2018 / Updated: Joseph Bucceri – June 2023

 

RESTRICTIVE COVENANTS

Definition. Restrictive covenants are deed restrictions typically found in a Declaration of Covenants, Conditions, and Restrictions, or a Declaration of Condominium for a community. Declarations including restrictive covenants are normally drafted and put in place by the original developer. In addition to the Declaration, associations often adopt Rules and Regulations and Architectural Guidelines that clarify the Declaration restrictions. These documents are collectively referred to as “Governing Documents.” Restrictions may vary in type and scope from community to community.

When restrictive covenants are recorded in a declaration, they bind all property owners. Even though a purchaser may not read the declaration, the purchaser is bound by the covenants because they are in his “chain of title” and attach to the property. As a result, the courts will consider each owner to have “constructive knowledge” of the covenants. What this means is that actual knowledge is irrelevant, and an “I didn’t know” defense is ineffective.

Purpose of Restrictive Covenants. The stated intention of many restrictive covenants is to “preserve, protect, and enhance property values.” This goal may be achieved as follows:

• Architectural and maintenance restrictions give a development a more standard appearance because they control some of the activities that take place within its boundaries.
• Use restrictions limit use of property for defined purposes and in accordance with defined standards. Use restrictions are generally intended to enhance residents’ peaceful enjoyment of their property, and set expectations for community norms.

Types of Restrictive Covenants. Although restrictive covenants include affirmative covenants such as an obligation to pay assessments, maintenance obligations, and insurance obligations, this article focuses on use restrictions. These types of restrictions fall within two general categories.

• Architectural and Building Restrictions. Often the covenants require an owner to seek prior approval from the association Board or Architectural Review Committee before making these types of changes.

Typical restrictions may include:

• • Size of dwelling
  • Setback requirements
  • Conditions on additions to dwellings (e.g., patios, enclosing porches, adding a second story, installing satellite dishes or solar panels)
  • Modifications to exterior appearance of dwellings (e.g., painting a different color, changing from siding to brick, adding windows and doors)
  • Interior modifications that may affect other owners (e.g., installing hard surface flooring in stacked units, connecting to common element utilities for items such as washing machines, structural changes)
  • Exterior appearance of lots (e.g., landscaping, yard art, flags)

• Use Restrictions. Although this is not an exhaustive list, it highlights some of the most common use restrictions:

• • Residential use of dwelling units (no businesses or short term rentals)
  • Leasing
  • Pets
  • Parking restrictions
  • Use of other limited common elements and garages (what can be stored on a patio or balcony, garage uses other than parking vehicles)
  • Nuisance and noise
  • Signs
  • Trash
  • Satellite dishes
  • Age restrictions in communities qualifying under Housing for Older Persons Act

COMMON VIOLATIONS

Architectural Violations. The most common violation of architectural restrictions is failure to obtain prior approval for a change before it is made. The best approach to architectural violations is to take action as quickly as is reasonable under the circumstances. Although the statute of limitations on a building restriction may allow the association to take legal action within one year, prompt action is prudent.

An early notice to cease work may allow the owner and the association to address the issue with minimal cost to either party and prevent the need for litigation. For example, if the board becomes aware that an owner is pouring a foundation for an addition that has not been approved, the board should immediately contact the owner in writing and request that the owner ceases work until plans are submitted and approved.

If the owner continues construction after receiving notice of the violation, a court is more likely to find that the owner’s actions were not in good faith and rule that the improvement has to be removed, even if the owner has expended substantial sums on the improvement.

Use Restrictions/Violations.

• Pets. There are a number of common pet restrictions. Typical violations range from having a pet in a community that prohibits pets, having a dog that is too big in a community that restricts the size of dogs, allowing a dog to bark for long periods of time, allowing pets to urinate on balconies, allowing an animal to roam off-leash, and failing to pick up pet waste from common areas.
• Parking. Many declarations include parking restrictions. Even if not included in the declaration, they are typically found enforceable if enacted by rule as a reasonable means to regulate use of the common areas. Common parking restrictions address prohibited vehicles such as RVs (recreational vehicles) and commercial vehicles, guest parking, and disabled or abandoned vehicles. Towing is commonly identified as a remedy to address parking violations.
• Leasing. To be enforceable, leasing restrictions must be included in an association’s declaration. This is more often through an amendment to the declaration rather than as a restriction in the original developer documents. Rarely, an association adopts language to completely prohibit owners from leasing their properties or with very few exceptions. More often, restrictions may include third-party beneficiary provisions for the association (e.g., minimum lease terms, owner liability for tenant violations, authority to evict a tenant within defined standards).
• Nuisance. Frequently, nuisance restrictions in governing documents are very subjective, and therefore, difficult to enforce. More recent documents sometimes define behavior considered to be a nuisance (such as barking dogs, music that can be heard in another unit, construction activity outside normal business hours). If the nuisance restriction is broad, the board should adopt rules defining what constitutes a nuisance for the community.
• Smoking. Smoking restrictions tend to focus on smoke odors being detectible within the common areas or in other units, as opposed to an outright ban of smoking within unit. This is a controversial issue, but at least one trial court in Colorado has held that if an association properly amends its declaration with the requisite owner vote, the association may restrict smoking within units.

OBLIGATION OF ASSOCIATION TO ENFORCE COVENANTS – THE BUSINESS JUDGMENT RULE

Colorado Courts addressed the issue of an association’s duty to its members to enforce covenants and the standard of care to which the association will be held in Colorado Homes, Ltd. v. Loerch-Wilson, 43 P.3d 718 (2001).

In this case, a developer brought tort claims against purchasers of a new home in a subdivision, and tort and contract claims against the homeowners association and its managing agent, relating to purchasers’ public protests (picketing and a sign in their garage window) of the developer’s alleged failure to make warranty repairs.

The developer alleged that the association breached its duty to the developers by failing to enforce the covenants against the Owners in good faith. The association acknowledged that a contract between it and the lot owners existed that obligated the association to enforce the restrictive covenants, subject to certain defenses.

The Court acknowledged that the business judgment rule applied to the actions taken by the association, and that the Court was not going to substitute its business judgment for that of the association’s board of directors.

Specifically, the Court noted:

“[u]nlike other types of contracts that require specific acts at specific times by contracting parties, covenant enforcement may require the exercise of discretion as to both the timing and manner of enforcement.”

The Court also found that the substance of the business judgment rule is whether an association’s decision to act or not act (e.g. whether or not to enforce a covenant against an owner, as in this case) is based on whether the association’s decision was made in good faith and was not arbitrary.

In this case, the owners claimed to be exercising First Amendment rights in their picketing and signage activities and claimed to have obtained law enforcement approval for the activities. Therefore, according to the Court, the association at least was required to make an appropriate investigation and evaluate the owners’ claims prior to initiating any enforcement proceedings and before deciding whether or not to take any enforcement action against the Owners. The Court noted that the standard applied regardless of whether the developer was pursuing either a tort claim against the association or a claim based on the contract the parties agreed existed.

ENFORCEMENT MECHANISMS

As a general rule, enforcement mechanisms are intended to gain compliance from the owner or resident. These are not intended for punishment of the owner or enrichment of the association. If it appears the association is taking enforcement actions for improper purposes, a court may rule in the owner’s favor, forcing the association to pay their legal fees.

Violation Notice Basics. The Colorado Common Interest Ownership Act (CCIOA) establishes two categories of violations, that have different requirements for enforcement: violations that are a risk to the health and safety of the public, and those that are general violations. Most covenant violations will fall into the general violation category.

A health and safety violation will usually be an action or condition that, if allowed to continue unabated for 60 days or more, will result in significant damage to association property, or constitutes an unreasonable risk to the health and safety of the community residents. A good example would be a leak that is inundating the downstairs units with sewage water. If there is a question if a violation is or is not a health and safety violation, the association should be prepared to articulate the justification of that designation. However, as long as the decision was reasonable under the circumstance, a reviewing court should give strong deference to the association’s decision.

A violation notice, regardless of category, is required to include several elements to comply with CCIOA. The notice should include a citation to the applicable rule or covenant that the owner is violating and must include the specific actions that the owner must complete to cure the violation. The letter must also include how long the owner has to cure the violation, any fines that may be imposed if the violation is not cured, and advise the owner that they have a right to a hearing if they wish to dispute the violation or any fine that may be imposed.

• Health and Safety Violation Notice Procedure. If the association determines a violation is a risk to public health and safety, the violation notice can be sent by any means, as long as it complies with the association’s governing documents. The association is required to provide a cure period of at least 72 hours after receipt of the notice. Once the 72 hours expires, the association can fine the owner as often as every other day until the violation is cured. After this waiting period, it is also authorized to take legal action against the owner to seek compliance.
• General Violation Notice Procedure. For any violation that is not a health and safety violation, the association is required to send a violation notice to the owner by certified mail, return receipt requested, and by a second means (this will usually be by regular mail or email). The first notice of violation must allow for at least 30 days to cure the violation. Once the 30-day cure period has lapsed, the association is required to inspect the property within 7 days. If the association determines that the violation was not cured, the association can then fine the owner, but the fine can be no more than $500 in total for that violation. The association can also issue a second notice of violation with a second 30-day cure period. After the expiration of the second violation notice, if the owner is still found to be in violation, the association can take legal action against the owner to enforce the violation.
• Transitory Violations. With the addition of mandatory cure periods from CCIOA, we often receive questions regarding violations that are temporary or transitory in nature. For example, a parking or noise violation – how does the association enforce a violation where it ceases before the association is able to get a letter written? Generally speaking, for these types of violations the association should issue notice for the violation that occurred, but then take no further action until the cure period has expired. Once the cure period has lapsed, if a new violation occurs within a reasonable length of time, the association can consider the violation as “uncured,” issue a fine and a second violation notice. This comes with the caveat that this procedure has not yet been tested and, therefore, a court may differ with the views conveyed in this paragraph.

Alternative Enforcement Options. There are a number of alternative resources the association and the community can use to encourage an owner or resident to conform to the association’s governing documents without issuing a fine or taking legal action. Before using any of the internal resources for enforcing rules, verify that the association has the legal authority to take such action, either by express grant or absence of a restriction, on any of the following:

• Record a Notice of Covenant Violation. The association may consider recording a notice of covenant violation, similar to a record notice of lien. This gives third parties (potential buyers, re-financing lenders, etc.) notice of the claimed violation. If these parties have notice, the violation is more likely to be cured. Also, these parties will be aware of the claimed violation if they attempt to close on a purchase of the property or on a refinance. The association should, however, be cautious about time frame and the statute of limitations (discussed below). The association should also ensure that this is an available remedy under the association’s governing documents.
• Suspension of Owner’s Voting Rights. If permitted by the governing documents, this may be the mildest action possible.
• Suspension of the Use of Recreational Facilities and Common Areas. Many governing documents contain broad authority allowing for the suspension of an owner’s right to use recreational facilities and common areas; however, typically the association should only suspend privileges related to the violation (e.g., suspend pool privileges – not parking privileges – for a pool violation). This usually requires notice and the right to a hearing.
• Self-Help. Self-help refers to those instances when the association takes direct action to correct the violation without a court order. This is generally not recommended due to the potential for confrontation resulting in breach of the peace or damage to an owner’s personal or real property. If an association decides to utilize self-help, the association should develop careful procedures before using self-help to correct a violation. Self-help should only be used if it is expressly authorized in the declaration, and only when it is an issue of health and safety of the community. Although the governing documents may specifically provide for self-help, the courts may see it as a breach of the peace or trespass and look unfavorably on the association for utilizing this mechanism rather than the court system.
• Utility Shutoff. Some governing documents allow utilities, particularly water service, to be shut off if an owner violates certain covenants. This resource, even if specifically provided for, should be used cautiously, if at all. Some municipalities and local governments prohibit this type of action because of health and safety concerns.
• Towing. The authority to tow a vehicle is typically found in either the covenants or rules. It can be an effective means of resolving a vehicle violation, although the cautionary comments under “Self Help” are also applicable to towing. Also, an association may not tow vehicles from public streets. Reasonable notice prior to towing should be provided, unless the violation constitutes an immediate threat to the safety of individuals or the community, such as a fire lane violation.

External Resources for Enforcement. The association can also draw on resources within the greater community to help enforce the governing documents. Cities, counties, and municipalities typically do not enforce covenants, rules, regulations, or architectural standards. However, if the covenants, rules, or guidelines are the same as or less restrictive than a county or city ordinance, the association may be able to get a county governmental agency or municipal department to enforce its ordinance instead of spending association time and resources on enforcement. In these cases, the association must ask for help from the applicable agency or department, and take the time to build effective working relationships with governmental officials. Some examples of this are as follows:

• Local Health Department. The county health department can be asked to enforce local health codes (e.g., number of occupants in a unit; internal use of a home; or storage in a dwelling or on a lot).
• Local Building/Zoning Department. This local agency (whether of a county, city, or town) can assist with enforcement of its ordinances (e.g., fence or shed regulations; setback restrictions; restrictions on commercial use of dwellings; removal of vehicles, boats, and trailers from lots or common areas).
• Local Building/Code Enforcement Department. These agencies issue building permits. In some areas, this office’s responsibilities overlap with those of zoning and health. In some areas, this office requires the approval of a community’s board of directors before it will issue a permit. This local government office may be able to help if a home is in violation of an existing building, plumbing, fire, or electrical code.
• Local Law Enforcement. In some jurisdictions, the police or sheriff’s department will enforce traffic regulations or issue tickets and/or tow violators of the community’s parking rules. Local law enforcement may also respond to noise violations.
• Local Fire Department. The local fire department may help with enforcement of fire lanes and the removal of hazardous materials.
• Animal Control Department. This agency may patrol the community for animals in violation of local ordinances and respond to “at large” pets or barking dogs.
• Local Government Centers. Several cities have established neighborhood resource departments to assist homeowners and homeowner associations with a variety of issues, including the resolution of neighbor to neighbor disputes. These departments may also have referral services available.

Alternative Dispute Resolution (ADR). An association can use ADR as a means of encouraging residents and owners to comply with the governing documents. Generally, ADR involves submitting a dispute to a trained, uninvolved third party for resolution (e.g., mediation or arbitration). The third party’s decision may be non-binding or binding on all the parties. This approach may be efficient and effective, or it may just add expense and delay, depending on the specific circumstances. The association might propose ADR when confronted with a difficult rule enforcement situation, the possibility of prolonged litigation, or disputes that involve difficult personalities. Under CCIOA, associations must have a policy on disputes between the association and owners that may include ADR options. As a part of the dispute policy required by statute, the association should address how disputes of owners with the association are to be handled, including any required notices or ADR options.

Lawsuit to Obtain a Court Order. The ultimate recourse of the association is a lawsuit against an owner in violation of a covenant, rule, or guideline. In a lawsuit, the association may seek a restraining order to stop the offending action and/or an injunction to prevent any further violation. The association may also seek to have the court force the owner to restore the property to the condition that existed prior to the violation, and to reimburse the association for any costs incurred in enforcing the restriction, including attorney fees.

• Who may (or must) enforce documents? As discussed above, the Colorado Supreme Court has held that the association has the obligation to enforce the association’s governing documents. Most governing documents also explicitly empower any owner to file suit to enforce the terms of the declaration.
• Which court can an enforcement action be filed in? There are three primary courts in Colorado: Small Claims Court; County Court; and District Court. Each of these courts can hear enforcement action cases involving residential restrictive covenants. There are advantages and disadvantages to each court, which should be considered in evaluating where to file a case, including costs, discovery rights, the judges, trial process, and jurisdictional limits. These factors should be discussed with the association’s attorney given the specific facts of any individual case.
• Remedies in Court. The remedy for breach of a restrictive covenant, rule, or guideline lies within the equitable jurisdiction or authority of the courts. The courts will not typically grant the prevailing plaintiff monetary relief, but instead, require the defendant to strictly comply with the restrictive covenant or rule. Courts can order the following remedies:

• • TRO – temporary restraining order
  • Preliminary injunctions (e.g., stop construction pending hearing on merits)
  • Permanent injunctions (e.g., prohibit construction, remove resident from community) and supplemental court orders:
    • court orders directing the removal or modification of buildings and structures to conform with restrictions;
    • monetary damages on the defendant owner if the violation had already caused actual damage to a common element or property owned by the association or if the owner failed to comply with the judgment requiring the owner to correct the violation and the association had to incur costs to correct the violation itself;
    • attorney’s fees and costs of the prevailing party.

• Recovery of Attorney’s Fees. Colorado law (C.R.S. § 38-33.3-123) authorizes the recovery of attorney’s fees by the prevailing party in any action brought to enforce a covenant or rule. Thus, as long as the association wins, it is entitled to recover from the losing party the attorney’s fees it spent. However, if the owner wins, the association will be required to pay the owner’s legal fees. If an owner wins, the association may not impose that owner’s pro rata share of the association’s fees against that owner.

Most declarations also have a provision that authorizes the association to recover from the owner any legal fees the association incurs in enforcing its covenants.

Even though the association may be entitled to recover its attorney fees, a court must still determine if the amount of attorney fees incurred or sought are “reasonable.”

• Defenses to Enforcement of Covenants and Rules. Defenses against restrictive covenants fall into three groups.

• • The first group of defenses relate to the magnitude of prior violations. The defenses in this group are closely intertwined, and at times, practically indistinguishable.
• • • Change in Character of Neighborhood. Generally, under this defense, the owner will argue that the community has changed so drastically since it was originally developed and the Declaration was originally recorded, that the covenant or rule no longer serves a meaningful purpose and its enforcement is no longer reasonable.
  • • Abandonment. Generally, under this defense, the owner will argue that the association has failed to enforce the relevant covenant or rule in such a long period, even though many violations of the covenant have occurred during that period, that the association has abandoned the covenant or rule. This argument is somewhat similar to a waiver defense discussed in the next section, but typically would require a much greater period of non-enforcement before the covenant is deemed abandoned and wholly unenforceable. Typically, three or four prior violations that have gone without enforcement are probably insufficient to make any of the defenses valid. Rather, the number of prior violations must be so great that a reasonable person would come to the conclusion that the particular covenant or rule has been abandoned, wholly waived, or never existed.

• • • Acquiescence. Generally, under this defense, the owner will argue that the association allowed or otherwise expressed an intent to allow the owner to violate the covenant or rule. Basically, the owner will try to show that the association authorized or approved the owner’s actions, either explicitly, or through inaction. The owner can then argue that they were merely acting in a manner similar to how they acted in the past.

• • The second group of defenses deal directly with the association’s actions or inactions prior to, or during the time of the alleged violation:

• • • Estoppel (detrimental reliance). This defense is predicated on the position that the association made a statement or took some action expressing that a covenant or rule would not be enforced and is now precluded (or estopped) from seeking to enforce it against the owner. For instance, when the association manager approved a specific paint color, even though it is not on the approved colors list.
  • • Laches (party with full knowledge of rights delays asserting them). This defense is based on the length of time that has passed before the association (or plaintiff) sought to bring an enforcement lawsuit against the owner. For example, if an owner had a dog that barked all the time (in violation of a covenant or rule), but the association failed to file a lawsuit for nearly two years after the association knew of the violation, the association could be precluded from pursuing its enforcement action even if its claim was brought before the applicable statute of limitations runs (as discussed below).

• • • Waiver (general failure to enforce). This defense is similar to the abandonment defense above, but generally would result in an order precluding the association from enforcing the applicable covenant or rule against this specific owner (not any other owners) in the specific instance that is the subject matter of the lawsuit.

• • • Statute of Limitations for Building Restrictions. Colorado law (C.R.S. § 38-33.3-123(2)) imposes a one-year statute of limitations on actions brought to enforce the terms of any building restriction or compel the removal of any building or improvement on land. The one-year mark is measured from when the association (or other enforcing party) knew or reasonably should have known of the violation. The “should have known” requirement will generally be interpreted as: could the violation be discovered with an exercise of reasonable due diligence on the part of the association? For instance, the association would have discovered the owner painted the exterior an unapproved color by merely driving past the property. On the other hand, it is unlikely the association would be aware of unapproved modifications to a backyard deck for a property, as reasonable due diligence does not require regular inspections of areas that are not visible from the road or sidewalk. A common error of associations is to believe that sending a violation letter prior to expiration of the statute of limitations will be enough. A lawsuit must be filed within the one-year period to negate this defense (although it can be served afterwards).
  • • Statute of Limitations for Use Restrictions. Each day that a use violation occurs can be considered a new violation. Based on court rulings to this effect, the statute of limitations begins to run on the last day the use violation occurs. Yet, unlike covenant and rule violations involving buildings or improvements, there is no statute of limitations specific to common interest communities for enforcing a use violation, so the nature of the claim provides for guidance on the applicable statute of limitations. Covenants, and the rules passed through the authority of the covenants, are based on contract theory. Therefore, without a statute specific to common interest communities, the courts treat covenants similarly to contracts. Covenant enforcement actions, which are analogous to breach of contract actions, are typically held to the statute of limitations for contracts, which is three years. Covenants and rules may also result in a claim which is more analogous to a negligence action, which is two years.
  • The third group of additional defenses that are often asserted include:

• • • Covenant or rule is being applied in bad faith and in an arbitrary and capricious manner. This defense seeks to overcome the business judgment rule. The phrase “arbitrary and capricious” generally means that the association has acted in an overreaching or malicious manner.

• • • Violation of a constitutional right, statute, covenant, or public policy (frequently discrimination claims based on the Fair Housing Act). Under this defense, the owner is arguing that the enforcement of the covenant or rule itself violates applicable state or federal law or a significant public right.

• • • Board exceeded its authority – Under this defense, the owner would be contending that the association, through its board of directors, did not have the right to enforce the applicable covenant or rule against the owner or failed to follow the Bylaws for approval of the enforcement action against the owner.

• • • The covenant or rule was not properly enacted in accordance with governing documents. Colorado law requires associations to have a governance policy outlining how rules will be adopted. Also, the Declarations generally state how Declarations could be amended or rules could be adopted. If the association fails to follow such covenants or policies when adopting the covenant or rule it seeks to enforce, the covenant or rule is deemed void and unenforceable.

• • • Enforcement procedures were not followed (i.e., procedure requires 30 days’ notice before lawsuit and only 10 days’ notice was given). Specific enforcement procedures may be set forth in the Declaration, rules, or under the required governance policy. Associations must comply with its enforcement procedures when enforcing a covenant or rule against an owner. If an association fails to do so, it could be precluded from obtaining a judgment against the owner.

• • • Covenant or rule is vague or ambiguous. This defense seeks to preclude enforcement because the covenant or rule is difficult to understand, and therefore, to comply with it. For example, an association has a rule precluding parking “recreational vehicles” in the neighborhood, but that term is undefined.

• Judicial Perspective on Association Covenant/Rule/Architectural Lawsuits. Unlike the defensive posture that associations often find themselves in on assessment collection lawsuits, enforcement lawsuits are generally better received by the courts. Yet, demands on the judicial system — very high, crowded dockets — may make it difficult or time-consuming to get to a day in court. Further, though better received, courts sometimes have perceptions that associations and boards are negative, unreasonable, arbitrary, and controlling. The board should prepare for this perception and make efforts to appear reasonable. Also, courts have broad discretion to fashion an appropriate remedy.

No Action. Board members often mistakenly believe they must enforce all violations, either because they have a legal duty to do so, or by failing to enforce a violation they will have waived the association’s right to enforce against a future violation. This can lead to unnecessary lawsuits and expenses for the association.

While the association, through its board of directors, is charged with enforcing its covenants and rules overall, not every single violation must be enforced. Subject to the governing documents, the law permits the board to exercise its reasonable business judgment and make a case-by-case determination of whether (and what type of) enforcement is appropriate.

As long as the board acts reasonably, in good faith, and in the best interests of the association, a court should not overrule the board’s decision. For example, the board may determine that there is a strong statute of limitations defense likely to be asserted if the association was to bring suit for a violation. The board is within its rights to make a determination, in this instance, not to pursue legal action. Such a decision does not breach any duty owed to the association, nor does it establish a legal precedent whereby all future violations cannot be enforced or all future requests must be approved.

PRACTICE POINTERS TO ENHANCE SUCCESSFUL COVENANT ENFORCEMENT

• Communicate with owners proactively before there is a problem. It is often easier to educate than to correct.
• Follow the association’s governing documents and act promptly and consistently. In cases where the board decides not to act in accordance with general practices, document the reasons.
• When there is a violation, document the violation and follow due process procedures as set forth in the association’s covenant and rule enforcement policy. Correspondence, records, and exhibits (particularly photos, if possible) are important if the violation is not easily resolved.
• Consider the nature of the violation when determining a proposed sanction.
• Consider alternative methods of dispute resolution – sometimes it just takes a third party to listen.
• To limit the chances that a court will second-guess the association’s decision, the board should document its decision-making criteria that evidence reasonable business judgment.