Covenant Enforcement: Think Twice Before Taking "Self Help"
Parton v. Palomino Lakes Property Owners Association, Inc.
While the legal process may seem slow and involve a significant amount of paperwork, this case shows what can happen if owners and directors decide to take enforcement matters into their own hands.
The Partons owned a lot within the Palomino Lakes Community, subject to the governance by the Palomino Lakes Property Owners Association, Inc. The governing documents prohibited mobile homes. The Partons decided to install a modular home and attempted to have it delivered to the homesite. Four (4) owners, (three [3] of which being members of the board of directors of the association) blocked the delivery by blockading the entrance to the subdivision. This happened on three (3) separate occasions.
As a result, the Partons filed suit against these owners and the Association and immediately obtained injunctive relief, as the Court apparently agreed that the modular home to be permanently attached to a concrete slab, was not a mobile home. The Partons amended their complaint to add counts for damages based upon tortuous interference with contract and civil conspiracy. A jury awarded the Partons $5,000.00 in compensatory damages and further awarded punitive damages against Larry Vinson in the amount of $60,000.00, Ila Vinson in the amount of $40,000.00 and against Linda Drielbelbis in the amount of $50,000.00! The Court also awarded the Partons prevailing party attorney’s fees and costs.
The Partons actually appealed from the Final Order, primarily on two grounds claiming:
- The compensatory damage award should not be divided as an award of $1250 against each individual defendant. Instead, the individual defendants should be jointly and severally liable for the compensatory damages; and
- The award of attorney’s fees didn’t explain how the Court calculated the fees and why they were reduced for the work associated with the tort claims. Moreover, the Partons claimed that all the individual defendants should be jointly and severally liable for the fee award.
The Court agreed with both contentions and instructed the trial court to revise the judgment to reflect that all four (4) individual defendants were responsible (jointly and severally) for both the compensatory damage award of $5,000.00 and the attorney fee award for that portion of the work was likewise the responsibility of all of them, jointly and severally.
Having those portions of the judgment reflect joint and several liability enables the Partons to collect the entire sum from one or less than all defendants, leaving those payors responsible for seeking contribution from the other defendants.
The extreme personal liability in this case could have easily been avoided by consultation with legal counsel when the problem first arose. Proper interpretation of the deed restrictions, as well as counseling regarding the procedures by which to enforce the deed restrictions is crucial to successful association operations. The reported decision doesn’t explain how the board members were held personally liable, but resorting to self-help under these circumstances was clearly wrong, leaving an undesirable outcome.
Would a similar result ensue against directors for a failure to enforce covenants? would the members be required to indemnify the directors in the event of a judgment assuming the ass'n documents haven an indemnification provision? would that hold true in the event of an award of punative damages too?
RESPONSE: Generally the D&O insurance will provide coverage in a claim against the board for failing to enforce the governing documents. It would be unusual for punitive damages to apply in such a case. Please speak to your insurance agent to discuss the actual coverage provided by the current policy and the exclusions.
This article and this blog has been very helpful in dealing with living in a Home Owner Association. All the information is always presented clearly and completely.
This article and this blog has been very helpful. The information was presented clearly and completely.
Holy crap! Thanks for the heads up. Not that WE would ever do something so uncouth...
Great site. Thank you. Our condo association(12 units on the florida Gulf) want to now start enforcing the minimum 30 rental rule that has never been enforced since the building was built in 2005. is there a time limit once rules are ignored that they no longer become enforceable?
RESPONSE: The Association can 'refresh' its restrictions through what is known as the "Chattel Shipping" procedure. By taking this action, the board can enforce new violations.
If a condo association has not enforced a restriction related to potted plants around individual units for at least five years, can they now demand that the pots be removed? Are they required to reimburse an owner for the cost of the pots and plants? At what point do they lose the ability to enforce rules that have been ignored for many years?
RESPONSE: There are many factors necessary to answer your specific question. Generally, the statute of limitations for enforcement of restrictions is five (5) years - but that is not dispositive.
Our HOA association is not enforcing our covenants. Do I have any rights. I have e-mailed them on several occassions with no follow-up. Many of the residents are frustrated with their lack of response. Please advise
thanks
RESPONSE: Individual owners have rights of enforcement. There are several posts on this site regarding enforcement by individual owners rather than the board of directors.
If the bulk of the members are unhappy with association leadership, they can initiate change through the recall process or by simply electing different board members at the next election.
Can a HOA in a private community restrict the use of hurricane shutters to only that for which the shutters are designed and not for personal security??
RESPONSE: Many HOAs have the power to regulate the use of anything that is visible from the exterior. Obviously there are a number of factors to take into consideration, but I am aware of several communities that prohibit owners from leaving shutters up all summer.