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Covenant Enforcement in West Virginia Community Associations

This seminar provides general legal information on covenant enforcement in West Virginia community associations. Learn about restrictions, potential violations, and the authority for enforcement. Presented by Lella Amiss "Ami" E. Pape Rees Broome, PC.

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Covenant Enforcement in West Virginia Community Associations

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  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 703-790-1911 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. 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 377,380-84 (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-4-109.- 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” ruleof 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

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