THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Saturday, July 2, 1994 TAG: 9406300456
SECTION: REAL ESTATE WEEKLY PAGE: 16 EDITION: FINAL
COLUMN: COMMON GROUND
SOURCE: G. ROBERT KIRKLAND and MICHAEL INMAN
LENGTH: Medium: 59 lines
Q. I have lived in my community for about 12 years, and our association's board of directors has always been lax about enforcing the upkeep of homes, even though it has recorded covenants on its side. Is it too late to begin enforcing these covenants?
We also need new rules to stop owners from painting homes odd colors and using inconsistent fence styles. Is it too late to enact rules on exterior appearance?
A. It might be too late to enforce those covenants. Under Virginia law, covenants are enforceable unless they have been ignored for such a long time that their impact on the community would be minimal.
Suppose a set of paint-color guidelines has gone uneforced for so long that the neighborhood is now a rainbow of shades and hues. It would make no sense to begin enforcing such a covenant - the damage has already been done.
On the other hand, suppose only five or six homes out of 250 bear offending colors. In such a case, there's still a chance that enforcing a paint-color covenant will correct this problem.
There's no specific point where a unenforced covenant becomes irrelevant. For each community, it's a judgment call.
If a community does decide to enforce a covenant, it should cite offenders with violations and schedule hearings where they may be fined.
As for your second question, it isn't too late to write new rules on home exteriors or other issues. The difficult part is dealing fairly with offenders once a rule is enacted.
For instance, suppose a community association's board of directors decides to adopt fence guidelines permitting only three styles. But 15 fence styles are already in place.
If there are no previous fence guidelines, the new rule should allow everyone, even offenders, to keep their fences until they need to be replaced because of age, termites or other cause. Then, the replacements must conform to the guidelines.
The association's architectural committee will review and approve new fence requests under the guidelines. To simplify the matter, the board should produce a form that fence applicant must complete, along with a sheet explaining the application process to owners.
In any case, the board must act now. Each day that passes lessens the board's chances of enforcing its covenants. MEMO: G. Robert Kirkland, president of a Virginia Beach property-management
consulting firm, and attorney Michael A. Inman specialize in Virginia
community-association issues and are affiliated with the Southeastern
Virginia chapter of Community Associations Institute. Send comments and
questions to them at Real Estate Weekly, 150 W. Brambleton Ave.,
Norfolk, Va. 23510. To submit questions by phone, call 446-2033; fax:
446-2531.
by CNB