CC&R Enforcement and Remedies
All neighborhood covenants include procedures for handling violations of CC&Rs, or requests for exemption or variances from CC&Rs. Since covenants are created by homeowners' or neighbor associations, internal notice and hearing requirements will be spelled out in the covenants themselves. It is important to remember that homeowners' associations cannot evict residents, remove personal property belonging to residents, or violate residents' personal rights in attempting to enforce covenants or control alleged violations.
The most common and easiest form of attempted compliance with a CC&Rs is to request a variance. A request for variance is a request for permission to depart from the literal requirements of a covenant. Variances are usually granted where enforcement would cause undue or unfair hardship on the requesting individual or resident. Examples include outdoor lighting at night for vision-impaired residents, pets that exceed the size, weight, breed, or limit on number as contained in a covenant, or keeping extra vehicles on the property or street.
Almost all requests for variances are handled by hearings before the association. Notice generally goes to all other residents, or at a minimum, to residents whose properties may be affected by a committee or board decision.
Alleged violations of existing covenants are generally first handled by progressive action. After verbal and written warnings, as outlined in the covenants, associations will generally hold hearings on the matter. Alleged violators will have this forum to present their defenses or objections to the allegations. Some hearings are more formal in nature, in which residents may present witnesses or "cross-examine" those who allege violations. Decision and resolution is generally controlled by vote.
For alleged violations that are not resolved, associations may decide to bring legal action against a resident for enforcement of a covenant. A court of law which has jurisdiction over the parties and the subject matter may render a formal judgment for or against the resident. Importantly, courts cannot enforce covenants for which they cannot determine a binding contract between the parties. The petitioning party must be able to show that the resident, in agreeing to the covenant(s), received some form of consideration in return for the promise. This may be inferred from circumstances evidencing increased property value, etc., but may also be a stumbling block for the association if its cause of action is not properly articulated. To overcome this possibility, associations tend to back up their lawsuits with citations of common law that parallel the covenants, e.g., public and private nuisance, interference with the use and enjoyment of property, disturbance of the peace, etc.
Courts of law may award monetary damages, impose injunctions, impound vehicles, or compel removal of personal property such as pets, in upholding CC&Rs. They may empower the association itself to take action, or compel relief through other resources, such as local police.