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Enforcing covenants without hoa4/6/2024 Most often, the association will be held to the statement of the committee member and the restriction requiring approval is unenforceable. The association, though its agent, made a statement.In the event that the plan is subsequently not approved, the homeowner is able to show that: Often a member of the board or committee tells a homeowner something to the effect of “I’m sure your plan will be approved as submitted, don’t worry about it.” After hearing that, but before any official ACC action, the homeowner then proceeds to landscape or complete construction according to the submitted plan, spending thousands of dollars. Commonly, this defense arises in the context of architectural control committee (ACC) approval. To establish the defense of estoppel, an owner must prove that the association, or one of its officers, directors or agents, has done or said something on which the defendant relied to his detriment. Although closely related, each of these defenses has distinct elements that the owner must prove in order to prohibit enforcement. ![]() Owners asserting these defenses seek to use some act or failure to act by the association to convince the court that enforcement of the covenant would be unfair. The defenses frequently raised with success by owners are estoppel, laches, waiver, abandonment, and selective enforcement. Therefore, with the careful implementation of a thoughtful plan for enforcement, they can be avoided. The good news for associations is that these defenses are most often based upon the conduct of the association. While the general rule is that the covenants must be enforced, there are common defenses that an owner can successfully raise to sometimes thwart the enforcement effort of the association. Despite this, we frequently hear from board members and association managers that they are frustrated because the courts fail to enforce restrictive covenants. Violation of the injunction can result in penalties ranging from a fine to time in jail. An injunction is an order from the court requiring compliance by the owner. ![]() ![]() The law in Colorado is that restrictive covenants must be enforced by the courts as written and the usual method of judicial enforcement is to request that the court issue an injunction. Ask the president, too, about interest among residents in serving on the board: Is there high motivation to do so or relative indifference? This conversation may also motivate you (or not) to serve on the board yourself one day, a move that would require getting elected and giving up some free time for your new responsibilities.At one time or another, most associations are faced with the necessity of taking an owner to court to enforce restrictive covenants. Schedule time to speak with the HOA president: This will help you get a sense of whether you want this person making decisions on your behalf about the development.As with other governing bodies, HOAs can be hampered by egotism, power plays, and petty politics. How collegially does the board function? Are differences in opinion usually handled civilly and constructively? Be alert for indications of frequent, even perpetual, drama. Talk to some of the community's current owners: Preferably, you'd talk to ones who are not on the HOA board and have lived in the building or community for several years.Investigate its reputation before buying: If the HOA has some employees or companies to which it contracts out tasks, ask about these entities and their work.
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