THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Saturday, November 25, 1995 TAG: 9511220427
SECTION: REAL ESTATE WEEKLY PAGE: 12 EDITION: FINAL
COLUMN: COMMON GROUND
SOURCE: BY G. ROBERT KIRKLAND AND MICHAEL A. INMAN, SPECIAL TO REAL ESTATE
WEEKLY
LENGTH: Medium: 63 lines
I live in a townhouse community where there are architectural guidelines concerning the maintenance of the exterior of the dwellings. The builder put fences in the backyards, which are not the greatest in quality - a lot of boards are missing and need replacement.
The community is about 10 years old and some of the units are not looking particularly good, detracting from the overall community. Some units need exterior trim paint and the vinyl siding is green.
A couple of us have attempted to influence our board to take action against the violators, but they say it's too expensive because you have to hire an attorney to have any impact. They say they have written letters to the violators but no action was ever taken.
What can we do to enforce our architectural guidelines?
The key to enforcement of this type of covenant is to act promptly and even-handedly. Your board is not correct when the members say it is a very expensive proposition because your covenant probably provides for recovery of attorney fees from the offending unit owner.
Even if your documents do not contain such a provision, the Virginia Property Owners Association Act gives the court authority to award attorney fees to the association in a covenant enforcement matter. You should have no trouble obtaining an award of attorney fees if your guidelines are reasonable and there is a clear violation.
Many violators will come into compliance once they are served with suit papers. At that point, you are entitled to attorney fees and your board should not deal with the homeowner further, but should allow the lawyer's office to deal with him.
The attorney should advise the violator that he will not be relieved of going to court over the violation even if he performs the repairs in order to comply unless he agrees to reimburse the association for its out-of-pocket expenses involved with filing suit.
This method has worked in other communities. Many times the worst offenders are out-of-state owners who are renting their properties. These owners can be sued even though they reside out of state.
It is a fiduciary duty of the board to preserve and protect property values. Covenant enforcement is a primary means of maintaining a good appearance for the neighborhood. The board must act to enforce the guidelines in a manner that will send a message to all the homeowners that neglect of their properties will not be tolerated.
The enforcement program should be mentioned in a community newsletter or other written materials given to the homeowners. After a couple of rounds of court action against several owners, your level of compliance improves dramatically. 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 the Community Associations Institute. Send comments
and questions to them at P.O. Box 446, Virginia Beach, Va. 23458. To
submit questions by phone, call 486-7265; by fax: 431-0410. by CNB