By Jonah G. Hunt, Orten Cavanagh & Holmes, LLC
In Colorado, community associations have a legal obligation to enforce covenants in order to protect and preserve the value of properties in the community. However, enforcing covenants is rarely as routine as it seems, largely due to a subset of owners who abide by the philosophy that rules are made to be broken or disregarded.
Associations act by and through a board of directors, whom, in the event of a violation must first determine what remedies are available under the community’s governing documents (i.e. covenants, rules, etc.) and what procedures must be followed. Available remedies can include fines, suspension of an owner’s voting rights or use of recreational facilities, covenant liens, self-help, mediation, and lawsuits. Of these remedies, self-help is generally the most controversial.
The governing documents should clearly authorize the association to enter onto an owner’s property to correct a violation. Ideally, they would also expressly permit the association to recoup any costs it incurs. The powers of an association are delineated in the community’s covenants, and if the covenants do not provide specific authority for self-help, this approach should not be undertaken. Associations should never simply assume they have this power, as having a board member, manager, or other agent enter onto an owner’s property without permission could expose the association to liability. Stated differently, if an association’s agents enter onto property without authorization, it could be construed as trespass, and if they remove or tamper with property, it could be theft or vandalism. The owner could call the police or get confrontational. This should be avoided.
Self-help should be utilized with restraint. Only true life, safety, and health issues warrant employing self-help. Matters that are merely an annoyance typically do not meet this standard. An association’s legal authority or ability to exercise self-help does not necessarily mean that the association must take that action. Overly aggressive or rogue enforcement of covenants can lead to protracted litigation, liability exposure, hostility towards board members and the manager, and even threats of physical violence.
Because acting beyond the scope of an association’s powers when employing self-help can cause adverse legal issues, the board must ensure they are not overstepping the mandates in the governing documents. For instance, associations should give their owners notice before entering onto properties, regardless of whether this is a requirement or not. If there are specific notice requirements in the governing documents, those should be followed.
So, should self-help be avoided at all costs? No, if the governing documents permit it and it is truly an emergency situation, self-help can be a valuable remedy. In other instances where an owner has not responded to multiple violation notices from the association, the association should consider legal action in the form of an injunction. Injunctive relief seeks a court order compelling the owner to comply with the covenants. If the owner fails to do so, the order would permit the association to enter onto the owner’s property to correct the violation. If there is a risk of an adverse interaction with the owner, the sheriff can be asked to “keep the peace” while the remediation is being performed. Injunctive relief, including the recovery of attorney fees and costs, is authorized under Colorado law and typically under the governing documents as well.
While the legal process is lengthier than simply entering onto someone’s property, it is far less risky. In addition, most owners will ultimately comply when they receive a letter from the association’s attorney, even if they’ve ignored prior notices from the association.
If there is a truism for all community associations, it is that voluntary compliance is always preferred over self-help or litigation. When enforcing covenants, associations should always act reasonably and in the best interests of the community. The exercise of common sense is also advisable.
Jonah G. Hunt is a community association attorney and partner at Orten Cavanagh & Holmes, LLC, providing strategic general counsel and litigation services to associations throughout Colorado.
