Covenant Actions

Covenant Actions by Bob Teasley

It is the responsibility of our Chimney Hills Homeowners’ Association (CHEHA) to enforce covenants and a first step in enforcing the covenants is to occasionally remind everyone of the covenants when some "slippage" seems to be occurring. Reminders do not always work. Some homeowners ignore them and some have even taken the attitude that they have no obligation to follow the covenants and can do whatever they like.

The CHEHA Board has taken the position that CHEHA must pursue each violation of the covenants that is brought to their attention by members of CHEHA. If a violation is ignored or a homeowner is advised that he/she may take an action which is in violation of the covenants, the association may lose the authority to enforce other covenants. Therefore, the CHEHA Board feels obligated to vigorously pursue any violation which is brought to their attention.

During the last few years it has been necessary for CHEHA to resort to legal action to enforce a covenant when a homeowner refused to comply with requests to follow the covenants. Normally these actions are not publicized in the Newsletter; however, they are always discussed thoroughly at the monthly CHEHA Board meetings. Since only a few members participate by coming to monthly meetings, many homeowners are not aware of these actions. The CHEHA Board has decided that everyone needs to be more fully aware of these actions and the following is a summary of the three legal actions CHEHA has pursued.

CASE ONE: In 1999, before the covenants were changed to allow the use of certain composition roofing materials, a homeowner decided to install a composition roof. The homeowner was sent a letter during the installation of this non-complying roofing material asking them to cease and desist and to install a complying roofing material. The homeowner ignored the notice and completed the installation of the non-complying material. The CHEHA’s attorney was asked to pursue the matter and a suit was filed in District Court. The Court ruled in the CHEHA’s favor and the homeowner was compelled to install a complying roof, pay court costs and all CHEHA attorney fees.

CASE TWO: In 1999, again prior to the changes in our covenants allowing some approved composition roof, a homeowner approached the CHEHA’s Architectural Committee with a request to install a composition roof. He was advised that at that time, the covenants did not allow the use of composition roofing material and specifically disallowed a material very similar to the type of material the homeowner desired to use. The homeowner attended a monthly CHEHA Board meeting and requested the board to overrule the CHEHA Architectural Committee and allow the use of the non-complying roofing material. The homeowner was advised at that meeting that the board did not want to overrule the architectural committee and, even if so inclined, did not have the authority to grant a homeowner dispensation from the covenant requirement. The board advised the homeowner that it was the desire of a large number of homeowners to revise the covenants to allow the use of composition roofing material and that the board was moving ahead as quickly as possible with a revision of the covenants,but that it would take several months to complete the revision. The homeowner was also advised that even when completed, the covenant revision would not allow the type of roofing material he had expressed a desire to use.

Within less than a month after this CHEHA Board meeting, the homeowner had installed the non-com-plying roof. The board received a letter, after the fact, from his attorney stating that the homeowner and the attorney felt that the homeowner had complied with the covenants based on an opinion from the roofing material supplier that the installed roof "best resembled the look and color of weathered cedar shakes" and therefore, approval by the Architectural Committee was mandatory. The letter further con-tended that the CHEHA Board had engaged in discriminatory and malicious conduct and were not following our own covenants and that the homeowner would hold the association and officers personally liable for any cost incurred due to our efforts to enforce our covenants.

Since CHEHA had no other alternative, a suit was filed in District Court requesting that the homeowner be compelled to comply with CHEHA covenants. Due to various delays, the case was extended over two years and the court trial was finally held on the 25th and 26th of July of this year. This case has cost CHEHA approximately $12,000 which will be recovered if the judgment is in favor of CHEHA. As of this writing, the judge has not issued a ruling.

CASE THREE: In 2001, a homeowner decided to convert his garage to a room and his garage door was removed and replaced with windows and a personal door. Since the covenants require an attached garage, the homeowner was asked to convert the room back to a garage. This homeowner refused to comply with CHEHA’s request and a suit was filed in District Court and, again, the Court ruled in favor of CHEHA and the homeowner was compelled to re-install a garage door. The Court also required the homeowner to pay the CHEHA’s attorney fees.

The CHEHA Board does not believe it is CHEHA’s desire to litigate with our neighbors. It is an unpleasant business, it is costly and it is time consuming. Also, having to take these actions takes a toll on the volunteers who actively participate on the CHEHA Board and its various committees. It leads to hard-feelings, to burn-out and volunteers decide it’s just not worth the effort or the hassle to serve on the CHEHA Board.

Each homeowner in Chimney Hills has a duty to his neighbors and to the laws governing the CHEHA covenants to act responsibly. Review the covenants periodically and be an informed homeowner. The purpose of restrictive covenants is to define and maintain the criteria setting quality and appearance standards for our neighborhood. If the CHEHA covenants are maintained we are all winners, but if the covenants are not maintained, we ALL lose.