The 5 Key Elements Of Your Legally Binding CC&Rs
For Homeowners either living in communities governed by Homeowner’s Associations (HOAs) or for those considering buying property located in such communities, how the application of Covenants, Conditions, and Restrictions (CC&Rs) might impact the use and enjoyment of any property located in such a community is an important consideration. Homeowners living in houses or other living units that are governed by a homeowners' association are faced with challenges in determining how the CC&Rs apply to the particular homeowner’s circumstance. While the CC&Rs are generally designed to help protect the integrity of a neighborhood, they can also give homeowners significant heartburn depending on what CC&Rs might be in place in a particular community and also, how they are enforced. This article is designed to give homeowners who are part of an HOA community or those who are considering becoming part of a homeowners association a snapshot view on how to address the various concerns that arise with regard to CC&Rs.
Rights and Powers of Homeowners Associations/Enforcement of CC&Rs:
In general, a homeowner’s association derives its power to make and enforce CC&Rs from a document which is commonly referred to as the Declaration of Covenants, Conditions, and Restrictions. The Declaration is a legal document that is filed of record and made a part of the official real estate records that run with each piece of land that is part of the community. Depending on the geographic region in which the HOA Community is located, there can be slightly different names for the document that is initially filed when the neighborhood is platted. The Declaration of CC&Rs can be thought of as the rules, limitations, and requirements that determine what individual property owners can do with their individual pieces of property within the HOA community. The overall goal is to protect and enhance the property values of all homeowners and to assure consistency with the uses or property within the neighborhood. Simply stated, the CC&Rs provide a roadmap to homeowners living within HOA communities of what is expected and permitted within the neighborhood. The Declaration document will also generally provide for rules on what is required to change any of the covenants, conditions, and restrictions once the declaration has been filed. Interestingly, the initial declaration is typically filed by the real estate developer responsible for creating the development and then out of that process, a homeowner’s association is created and cloaked with legal authority to administer and enforce the CC&Rs. Most HOAs are governed by a Board of Directors that depending on the Bylaws is elected on some rotating basis, which is typically annual.
Use Restrictions and Maintenance Requirements:
Some of the more basic items that are typically included in the CC&Rs are items that determine how properties can be used within the HOA community. Examples might be restrictions and/or limitations on commercial business within the neighborhood, parking restrictions for items such as boats, RV’s and other recreational items and other general use restrictions. Condominium and/or twin home communities might also have more restrictions on noise, items such as charcoal grills and what other types of activities can be undertaken within the property as this is a function of the proximity of one unit to the next. Additionally, maintenance requirements such as removal of noxious weeds, that properties must be kept in good repair and other similar requirements may also be included in the CC&Rs.
One of the more often litigated issues with typically involves extended parking of recreational vehicles on a property located in the HOA community. For example, many homeowners' associations have rules that would specify that boats, trailers, and the like may not be parked for more than 48 hours at a time on a homeowner’s property. This sort of thing can often lead to disputes among neighbors and often puts pressure on the association's board to take action. It is not uncommon for litigation to erupt over those issues and when it does happen results in unfortunate costs which are typically assessed to the neighborhood association members and on top of that no doubt leads to bad feelings.
Construction and Design Restrictions
Another area often covered by CC&Rs includes requirements that govern construction and design. Typically there are minimum square footage requirements, set back requirements and sometimes even rules that govern what type of construction materials must be used. Some neighborhoods even have design approval requirements that include a process for homeowners to gain approval of construction plans before they may begin construction. Sometimes there are also rules regarding landscaping, removal of trees and construction of additional structures such as free standing garages. For prospective homeowners considering whether to purchase real estate or other property in an HOA community, it is important to understand how building requirements might impact the overall cost, design and use of a particular property before they purchase. Otherwise this could lead to an extremely unpleasant surprise if those factors are not taken into consideration.
Maintenance Fees to Members of the HOA
CC&Rs often give homeowners' associations the power to assess or charge the members of the HOA for various items. One of the more typical items for association fees is for shared well and water usage. Depending on the rules for the particular HOA, a billing process may be set up for dues to the homeowners' association which covers various things including things such as well and water maintenance. Other typical association fees related matters would cover items such as snow removal, lawn care, electricity for common or shared lighting and other similar matters. When everyone pays as directed by the homeowners' association, everything runs smoothly. However, sometimes members fail to pay their dues which may result in a collection process to recover the delinquent HOA fees. Most often, this would start by written correspondence and may lead to the filing of a legal action against a homeowner who has not paid his or her required dues. Once a judgment is obtained, “the assessment” then becomes a lien against the real estate which would need to be satisfied if there is a transfer of the property. Other normal collection procedures could also be used to satisfy the judgment if needed. Most association dues for typical items are within the ordinary course. However, when things get really tough is if there is a major assessment for something such as a roof repair, reconstruction of a pond or repair or reconstruction of a road. This is why it is critical for homeowners to understand what those possible big ticket items might be so they can factor that into their analysis about whether to purchase property in a particular community governed by a homeowners' association. A thorough review of the language in the covenants is very important for all homeowners living in HOA communities. These are generally available from real estate developers and brokers so that prospective purchasers have an opportunity for review in advance of a real estate transaction.
One of the more tragic examples of association fees that I am aware of from practicing law for the last 21 years occurred in a local neighborhood in my area. The HOA decided to litigate against one of the members for parking an RV on the homeowners property at all times. As it turned out, the language in the covenants technically did not prohibit the parking of the RV so said the court and as such, the HOA lost and then assessed the members of the neighborhood for thousands of legal fees incurred in fighting the legal battle. This is why a very clear understanding of what is allowed by CC&Rs and what is not is critical not only for the homeowners but also the Board of Directors.
Expiration of Covenants
Depending on where a homeowners' association is located, there are usually limits on how long CC&Rs can be in place without being renewed by the members of the HOA. In most places, the CC&Rs would be in place for 21 years from the original filing of Declaration. After that initial period, the members of the homeowners' association would typically have to vote to renew the covenants otherwise they would in general expire and no longer be enforceable. This is important both for members and its Board of Directors to understand because if there is a strong desire to protect the integrity of a neighborhood and to promote consistency amongst the uses of property in the neighborhood, the covenants will generally have to be refiled to continue the protections. This is often overlooked because usually once the original developer sells the lots and hands over management of the homeowners' association to the Board of Directors, he or she has no interest in worrying about what happens to the CC&Rs thereafter. In any case, this is really a state law question that each association member and Board of Directors should investigate to ensure that the wishes of the homeowners' association members and Board continue to be met in the future.
CC&Rs can certainly do a lot to protect the integrity and value of properties located in HOA neighborhoods. However, they can also make it more difficult for property owners to have the full use and enjoyment of their properties. Thus, homeowners need to carefully consider CC&Rs in determining whether to purchase a property located in an HOA community.