Community storm water systems are a big deal these days. Counties and municipalities typically require, as a condition of zoning for new planned developments, that storm water detention ponds or other facilities be part of the common property owned and maintained by the community association. Back in the 1970’s and 1980’s, this was not the case. Storm water ponds, even if maintained by an association, might be located on a homeowner’s lot. What could go wrong?

Let’s take the Soggy Bottom Community Association* as an example. Soggy Bottom was developed in the 1980’s. The community’s detention pond was located wholly on an owner’s lot. Plats for the community depicted a fence around the pond and an easement for the association to access and maintain the pond. The plat and the declaration of covenants, consistent with the zoning conditions for the development, obligated the association to maintain the pond and protective fencing. The owner of the lot did not like the looks of the storm water pond located on his property. He was a landscaper by profession and had access to, among other things, a Bobcat skid-steer and a dump truck. As he got well into removing the protective fencing and re-grading the storm water pond, the association received a notice of zoning violation from the county. The county required that the fence be replaced immediately. After several months of back and forth with the owner to try to resolve the issue, the association contacted its legal counsel who issued a cease and desist letter. The gist of the letter: the association maintains the fence and the pond and has easements over the lot to do so. The association has authority to approve or deny modifications of a lot. The owner did not request approval for his modification nor did the association grant such approval. The owner is in violation of the declaration, must pay a fine for each day the violation continues, and must restore the pond and protective fencing to its original condition. If the owner does not restore the pond and fence within 10 days, the association will exercise its right of self-help as provided in the declaration of restrictive covenants, enter the property, and restore the pond and reinstall the fence. Pretty straight forward, right?

Governing documents for many communities authorize the community association to exercise “self-help” in addressing violations of the restrictive covenants. The governing documents will provide that an association, after providing a homeowner with notice and an opportunity to cure, may enter upon a property to abate or remove any structure, thing or condition which violates the community’s covenants or rules. Although the provisions of the declaration may seem pretty cut and dry in granting an association self-help authority, exercising that authority is a whole different story.

Fast forward 10 days at Soggy Bottom following the cease and desist letter. The owner has continued with his work re-grading the pond and adding hardscaping around the pond. The association sends its fencing contractor in to replace the protective fencing, but the police come before the contractor can even unload his truck – when the contractor pulled up, the owner had called to report a trespass. The officer, faced with a homeowner claiming private property rights and association board members waving the declaration and claiming a right to enter on to the property to exercise self-help, punts. The police will not make a determination of legal rights in these situations and likely will not even look at a declaration of covenants being waved at them. Rather, the police officer will tell agents of association to stay off the property until they have a court order authorizing entry.

Typically, a lawsuit asking a court to grant access to a homeowner’s property in order to exercise self-help involves requesting a temporary restraining order to keep the homeowner from continuing to violate the declaration together with authority to abate the violation. This is requested through an expedited “emergency” hearing scheduled through superior court. Of course, courts have lots of other important business to tend to and might not see removal of a fence as an “emergency.” Even if the association “wins” at an emergency hearing, this does not necessarily resolve the association’s underlying claim on its merits. An association may be able to perform some remedial work and temporarily stop a violation of the covenants, but the homeowner is still entitled to a court proceeding on the underlying claim.

For the Soggy Bottom Community Association, the emergency hearing was far from the end of the matter. The homeowner fought tooth and nail. The judge at the hearing, considering the amount of time the association took before commencing legal action, did not find the situation to constitute an “emergency” and ordered the parties to mediation. The parties entered into a mediation agreement, but the homeowner defaulted. Upon filing a motion to enforce the mediation agreement, the court awarded the association judgment together with attorneys’ fees. The entire process extended over years, and the parties came to terms only when a new board of directors was elected who just wanted to see an end to the conflict.

The right to exercise self-help is important to have in a declaration of covenants and can be essential in enforcing a community’s covenants. However, exercising self-help is easier said than done. A lawsuit brought to abate a covenant violation can be expensive and protracted. And just because an association may have some right afforded by the declaration of covenants, there is no way to anticipate how a judge or jury may view that right or the facts in any given situation or whether the association may prevail in the end. When a covenant violation occurs, a board of directors should make an early evaluation of the situation to consider all of its potential remedies, including self-help, and determine which remedies are appropriate and worthwhile for the situation at hand. The association’s legal counsel can assist in determining whether it makes sense for the association to help itself.

*names in this article have been changed to protect the innocent