Survey Questions

1.  Has your association ever gone to court over your covenants?

2.  If yes, what was the outcome of the court action and what type covenants seemed to be (or not to be) legally enforceable?

3.  How do you enforce your covenants? If you have any written procedures for this, please send them with this survey or tell us where online we can see them.

4.  Have you ever put a lien on property for a covenant violation?  If yes, have you encountered any legal problems with enforcing the lien?

Reporting Neighborhoods

Number of neighborhoods returning surveys:  22 (list at end of report)

Number of Lots within the returned surveys:  3746

Survey Results

    Court Cases

    Number going to court:   4

    Number winning in court:  2

    Number losing in court:  1

    Number settled by a court ordered Special Referee basically resulting in a tie:  1

    Written Procedures to Enforce Covenants

    Number with written procedures:  9

    Number with no written procedures:  5

    Number not specifically answering this question:  8

    Liens Filed for Covenant Violations

    Number placing liens:  5

   

Comments on Going to Court

From Beacon Shores:  The case involved the HOA suing a homeowner because he was building an unattached garage with a guest quarters above.  Due to heavy case loads, the Judge assigned an “impartial” attorney as a Special Referee to hear the case on behalf of the court.  The case was conducted as if it were a court case with depositions, testimony in two court hearings, and ultimately a ruling by the Special Referee approved by the Judge.  The outcome of the case was a compromise solution which allowed the garage to be attached to the house by an open breezeway with a gazebo in the middle, such that the structure could be considered a part of the primary residence. 

From Keowee Key:  We won [the court case] and were awarded $100,000 in legal expenses. The courts are going to hold you to a standard of reasonableness when it comes to the enforceability of covenants. They will also look for consistency in enforcement. Overall, the courts are friendly to associations who consistently enforce their covenants.

From South Oak Pointe:  Our fence covenant (as written by Crescent) started out with "Fences and Walls. No wooden fence, or brick or stone wall may be erected... " While the covenant is obviously intended to cover all fences or walls in its entirety, the offending fence was metal (architectural aluminum) in construction. The judge hung his hat on this inconsistency, even though state law specifically says the entirety of the covenant should be considered in a decision, not just one particular excerpt. Our attorney said we stood a very good chance to win on appeal, but . . . we decided to cut our losses and move on.

From Teakwood Plantation:  A lot owner submitted house and landscaping plans to the architectural review committee (ARC) which rejected them because the house was placed at the extreme rear of the lot where it would be looking into the rear of the existing house next door. . . The Assn. brought suit, and we were required to enter binding arbitration. The decision of the arbitrator was in our favor, and supported enforcement of our covenants. There are still bad feelings . . . in the neighborhood about this whole affair.

Comments on not Going to Court

From Beacon Shores:  After the garage case, we modified our by-laws to require a Member Vote before initiating Legal Action to enforce the Covenants.  Since Legal action proved to be quite expensive and divisive to the community, the intent was to make sure that all other measures to enforce the covenants were exhausted and that the majority of the community was in favor of taking the legal step.

From Cherokee Bay:  Our attorney advised that if even if we got a judgment against the property owner for a blatant violation, there was nothing we could do. The property owner would just ignore it. The cost for legal fees and court costs would probably be somewhere in the vicinity of $3,000-$4,000. Our problem is that some property owners ignore the covenants with regard to new additions or work on their property and keeping boats, trailers, etc. in places where they are not allowed.

From Wellington Pointe:  Wellington Pointe has not gone to court for covenant enforcement. We have met with lawyers on the issue and were told that judges would support enforcement of the covenants, within reason. It was emphasized that it was important to enforce all of the covenants and to be sure they were enforced equally with all property owners. The most significant problem we have encountered has been with the wording of the covenants. As an example, the covenants require trailers be kept behind the house but say nothing about prohibiting trailer storage on a vacant lot.

Comments on Procedures

From Crestview:   We require written permission for EVERY activity. No more he said this or he said that.  Equally important- we revised our Covenants to require arbitration/mediation or the use of the Master in Equity. No more of this court action which drags on and on.  All of this information is available on our web site at http://crestviewoa.org.  There is a link to our Guidelines and another to our Covenants. The revised section requiring arbitration is 12.1(a).

From Emerald Pointe:  We have a Covenants Committee that is charged with initial adjudication of complaints.  Any complaint submitted to the committee must conform to two specific regulations: 1) The complainant must first speak with the accused violator to try and resolve the matter; 2) If no resolution is reached, a written complaint including the date when the two parties met and the specific Article and Section numbers of the covenant allegedly violated must be submitted to the Covenants Committee.

From Riverlake:  The Board of Directors created an ongoing “Rules and Regulations” document that serves to uphold the covenants and by-laws. These rules and regulations work in conjunction with the covenants and by-laws, and do not require the services of an attorney or the rigors of the filing process, to be enacted.

From Southwind Bay:  We use our Management Company to inform Covenant violators. This puts a "third party" between neighbors.

From Waterford Pointe:  We hire [a person] to approve plans and to follow new builds although we don’t have any going at this time. He also works in the same capacity at Keowee Key and I think Waterside.  We use also use him as our enforcer and it has worked very well except for one situation.

Comments on Attorneys

From Beacon Shores:  Our experience with difficult enforcement issues is that a negotiated settlement is a better solution for all parties (except the lawyers) than litigation.  In the garage case we found that once litigation is started, the lawyers tend to want to speak for the parties and may actually interfere with the two parties reaching a negotiated settlement. 

From Moonlight Bay on Lake Keowee:  While I am not an attorney, due to the nature of my prior employment, I have had a lot of experience preparing documents for attorneys to present in court. I have clearly found that a well prepared attorney has a good chance of winning the case – no matter what side he represents. The cases that I have seen have most frequently resulted in a win for the best prepared attorney. That may be the homeowner because the HOA or POA just does not have the money to pay for good legal assistance. At least our POA has limited resources to fight for what is right. Wouldn’t it be nice if only the people who were right won cases?

Comments on Liens

From Beacon Shores:  The Board has levied substantial fines for three incidents involving setback violations.  In one case, the fine was partially paid by the builder, and a lien was filed to collect the remaining part of the fine.  It is interesting to note that the house was sold and conveyed at a closing and the closing attorney did not discover the presence of the lien.  The builder voluntarily paid the remainder of the fine after the closing.  We released the lien upon receipt of the amount owed. 

From Crestview:  Yes, we currently have a lien on a person’s property for about $8,000 to replace some trees that he cut down without written permission.  We used a lawyer to write him about the lien and to place it on his property.  The important item is to have the procedures in place to enforce an action and to document everything in writing.

From Keowee Key:  No, [we have never filed a lien for a covenant violation].  Be careful. There are plenty of embarrassing stories out there that reinforce a negative stereotype of community associations. The media just loves the story about the evil association that cracks down on an 8-year old's lemonade stand because it violates the "no business" covenant.

Written Procedures

The following Associations either submitted detailed written procedures for dealing with Covenant Complaints or stated that they have them.  If you would like to see their document(s), please let us know and we will put you in touch with the proper person:  Beacon Shores , Crestview (http://crestviewoa.org), Emerald Pointe (http://emerald-pointe.com/links.htm  Click on EPOA Policy Book), Keowee Harbours, Keowee Key (www.keowee-key.com. Click on "Resource Center" tab), Port Santorini, Riverlake, South Oak Pointe, Teakwood Plantation (http://www.teakwoodplantation.org/cgi-bin/documents.pl)

Survey Participants

Beacon Shores  (Lake Keowee)

Cherokee Bay (Lake Hartwell)

Crestview  (Lake Keowee)

Emerald Pointe   (Lake Keowee)

Edgewater  (Lake Hartwell)

Keowee Harbours  (Lake Keowee)

Keowee Inlet  (Lake Keowee)

Keowee Key  (Lake Keowee)

Keowee Shores (Lake Keowee)

Marina Point (Lake Keowee)

Moonlight Bay   (Lake Hartwell)

Moonlight Bay   (Lake Keowee)

North Harbour  (Lake Keowee)

Oak Stone (Lake Keowee)

Port Santorini  (Lake Keowee)

Riverlake  (Lake Hartwell)

Shelter Cove   (Lake Keowee)

South Oak Pointe  (Lake Keowee)

Southwind Bay  (Lake Keowee)

Teakwood Plantation  (Lake Hartwell)

Waterford Pointe  (Lake Keowee)

Wellington Pointe  (Lake Keowee)

Disclaimer:  MLCA is not able to offer legal advice and cannot respond to any requests for legal advice or the application of any law to specific facts. To understand and protect your legal rights, you should consult the lawyer of your choice regarding legal questions.  There are attorneys who specialize in community association law.