1. WEST VIRGINA COMMUNITY ASSOCIATIONS DAY 2011
COVENANT ENFORCEMENT

2. WEST VIRGINA COMMUNITY ASSOCIATIONS DAY 2011
COVENANT ENFORCEMENT
Presented by
Lella Amiss “Ami” E. Pape
Rees Broome, PC
7430 Heritage Village Plaza, Suite 202
Gainesville, VA 20155
These seminar materials contain general legal information about Covenants Enforcement and Community Associations. These materials are provided for educational purposes only. Rees Broome, PC is providing these materials with the understanding that neither the law firm nor the attorneys presenting the program are engaged in the rendering of legal services for the participants attending the presentation.

3. Uniform Common Interest Property Act, WV Code § 36B-1-101 et al.
Allows Declarant/Developer to place restrictions on land subdivisions
Put in place “Association” to enforce restrictions
Restriction should be reasonable.

4. RESTRICTIONS = POTENTIAL VIOLATIONS
Governing Documents
Rule or Policy Resolution
Architectural Standards and Design Guidelines

5. RESTRICTIONS = POTENTIAL VIOLATIONS
Violations can result in depressed property values for surrounding properties
Don’t ask “Do I want this in my neighborhood?” but ask

6. RESTRICTIONS = POTENTIAL VIOLATIONS
“ What will this [item, change, modification, repair, improvement, deferred maintenance item] mean to over all property values?”

7. What is a violation?
Governing Documents

8. What is a violation?
Governing Documents
Rule or Policy Resolution

9. What is a violation? Governing Documents Rule or Policy Resolution
Architectural Standards and Design Guidelines

10.  to weakest What is a violation? Governing Documents
Rule or Policy Resolution
Architectural Standards and Design Guidelines
Strongest
 to weakest

11. Authority for Enforcement
Statutory
1. West Virginia Uniform Common Owner Interest Act 36B-1-101
&
Governing Documents

12. § 36-B-1-108. Supplemental general principles of law applicable.
The principles of law and equity, including the law of corporations and unincorporated associations, the law of real property, and law relative to capacity to contract, principal and agent, eminent domain, estoppel, fraud, misrepresentation, duress, coercion, mistake, receivership, substantial performance, or other validating or invalidating cause supplement the provisions of this chapter, except to the extent inconsistent with this chapter.

13. What is a Violation and Where do I find it?
Governing Documents
Rule or Policy Resolution
Architectural Standards and Design Guidelines

14. What is a Violation and Where do I find it?
Governing Documents
1. Articles of Incorporation
2. Declaration
3. Bylaws
4. Case Law

15. What is a Violation and Where do I find it?
Governing Documents
1. Articles of Incorporation (rare)
2. Declaration (always)
3. Bylaws (seldom - unless a Condominium regime)

16. …cont’d What is a Violation and Where do I find it?
Policy Resolution – Rules and Regulations
 All Policy Resolutions are Association drafted, so they are to express the Association interpretation of the restrictions, but cannot alter what the restriction states.

17. …cont’d What is a Violation and Where do I find it?
All Policy Resolutions are Associations drafted and should also contain:
1. Notice and opportunity to cure
2. Opportunity to request a hearing
3. Advance notice of hearing
4. Notice of ‘Ultimate Determination’ to offending owner

18. …cont’d
D. Case Law
Courts evaluate legality of covenants restrictions based on the “reasonableness” and expressed intent of the parties –
Wallace v. St. Clair., 147 WV 377, (WV 1962)
From principles is derived probability, but truth or certainty is obtained only from facts.

19. When to Issue a Violation Notice?
Owner Complaints
e.g., Noise and Behavior
1. Written complaint, preferably not anonymous complaints
2. Complainant should be prepared to participate in the process

20. When to Issue a Violation Notice? …cont’d
Routine Property Inspections
1. Annual or semi-annual community walk-through
2. Scheduled Inspections by Covenants Committee/ARC

21. When to Issue a Violation Notice? …cont’d
Resale Disclosures
WV Code § 36-B Resale of Units §(10)- requires Association to issue a statement as to whether
(10) the executive board has knowledge that any alterations or improvements to the unit or to the limited common elements assigned thereto violate any provision of the declaration;

22. When to Issue a Violation Notice? …cont’d
Resale Disclosures
1. Is this the first time that the violation has been cited?
2. Is it reasonable to cite the violation in the resale package?

23. When to Issue a Violation Notice? …cont’d
Non-Routine Inspections
1. Complaints
2. Other, e.g., leaks, damages, etc.

24. What Happens When A Board Is Challenged?
A. Grandfathering
B. Does one exception mean waiver?
Does ten?
Twenty?
C. Abandonment
“A restrictive covenant can only be abandoned by
total disregard of the existing restrictions that affect
the tone or tenor of the neighborhood”

25. Avoid Challenges A. Business Judgment Rule B. Do not act arbitrarily
C. Do not selectively enforce

26. Is Court Action Necessary?
A. When should you litigate?
Recovery of legal fees expended to litigate only ordered by the Court and then only to the prevailing party.
B. Costs versus Benefits analysis required

27. Is Court Action Necessary?
A. When should you litigate?
Little or no recovery of fees because only the Court can award legal fees and only to the prevailing party recovers.
B. Are you going to be the prevailing party? 

28. Self-Help Remedies
Is the Remedy Expressed in the Association’s Governing Documents?
Can it be Used Effectively?
1. Contractors are reluctant to
perform work without the owners permission.
2. The “15 minute” rule of Self Help

29. Self-Help Remedies
Is the Remedy Expressed in the Association’s Governing Documents?
Can it be Used Effectively?
1. Contractors are reluctant to
perform work without the owners permission.
2. The “15 minute” rule of Self-Help

30. Help from Local Authorities
Planning Administration
e.g., lawn maintenance, grass height
County Hotlines
e.g., pet complaints, noise complaints
Health Departments
e.g., trash issues
D. Police

31. Specific Scenarios

32. Issue #1: Storage of Items

33. Issue #2: Failure to Maintain

34. Issue #3 – Display of American Flag
Federal law applies
Association can typically enact reasonable rules

35. In Closing
Enforcement is the key to protecting property values and the visual harmony of your community