The 5 Key Elements Of Your Legally Binding CC&Rs
The CC&Rs provide a roadmap to homeowners living within an HOA of what is expected and permitted in the community.
For Homeowners living in communities governed by a homeowner’s associations (HOAs) or for those considering purchasing a property in these communities, it is important to consider how the existing Covenants, Conditions, and Restrictions (CC&Rs) may impact the use and enjoyment of the property.
While the CC&Rs are generally designed to help protect the integrity of a neighborhood, they can give homeowners significant heartburn depending on what CC&Rs might be in place in a particular community and how they are enforced.
This article is designed to give homeowners who are part of an HOA community or those considering becoming part of a homeowners association a snapshot view on how to address the various concerns that arise concerning the CC&Rs.
What are HOA CC&Rs?
The Declaration of Covenants, Conditions, and Restrictions, commonly known as the CC&Rs, is a legal document that is filed with the county recorder's office and made a part of the official real estate records that run with the land that is part of the community.
The CC&Rs are initially recorded by the real estate developer to create the homeowner’s association and give the association's elected Board of Directors the power and legal authority to administer and enforce the community rules. Importantly, the CC&Rs outline the processes and procedures community members must follow to implement changes to the recorded declaration.
The CC&Rs can be thought of as the rules, limitations, and requirements that determine what property owners can do with their property. Simply put, the CC&Rs provide a roadmap to homeowners living within HOA communities of what is expected and permitted in their neighborhood.
Use Restrictions and Maintenance Requirements
Some of the basic restrictions that are typically included in the CC&Rs are the rules that determine how properties can be used within the HOA community. A few examples include an owners' ability to rent the property, prohibitions of commercial and recreational vehicles, and strict limitations of exterior changes to the property.
In addition, the CC&Rs generally include the owner's responsibility to maintain the property in good condition and repair at all times, such as removal of noxious weeds, unsightly objects, and trash cans on non-collection days.
Condominium and cooperative communities may have stricter restrictions on noise, use of charcoal grills, smoking, pets, and other types of activities that can be undertaken within a property due to the proximity of one unit to the next. One of the more often litigated issues typically involves parking of recreational vehicles on an HOA property.
Many HOAs have rules that prohibit the parking of boats, trailers, and the like for more than 48 hours at a time. This sort of thing can often lead to disputes among neighbors and often puts pressure on the association's board to take action.
It is not uncommon for litigation to erupt over these common restrictions resulting in unfortunate costs that are typically assessed to the community members.
Construction and Design Restrictions
Another area often covered by the CC&Rs include requirements that govern the construction and design of an HOA property. Typically there are minimum square footage requirements, set back requirements, and sometimes even rules that govern what type of construction materials must be used.
Most HOA communities have design approval requirements that include a process for homeowners to gain the approval of construction plans before they may begin construction. In most cases, there are also rules regarding landscaping, removal of trees, and construction of additional structures such as free-standing garages or gazebos.
For prospective buyers of an HOA property, it is important to understand how building requirements might impact the overall cost, design, and use of a particular property before they purchase. The failure to consider these common restrictions could lead to an extremely unpleasant surprise.
Maintenance Fees to Members of the HOA
The CC&Rs often give an association's board the power to charge members for community maintenance fees. Depending on the community rules, dues may cover for landscaping, snow removal, electricity, water, and legal fees. When all community members pay, the association runs smoothly.
However, sometimes members fail to pay, which forces the recovery of unpaid fees via the association's collection process. Most often, this starts with written correspondence from the association and leads to the filing of legal action against a homeowner to compel payment.
When a judge grants judgment to the association, the association is given the green light to collect unpaid fees plus related fees and costs via wage garnishment or bank levies. The association may also use other standard collection procedures to satisfy the judgment, including foreclosure of the property.
Most association dues are within the ordinary course; however, things get tough when the association imposes special assessments against the community members for an emergency roof repair or reconstruction of a road. For this reason, homeowners should factor all possible estimates before buying into an HOA community.
A thorough review of the language in the CC&Rs is essential. These are generally available from the county recorder's office or real estate agents.
Expiration of Covenants
Depending on what state law and the CC&Rs dictate, there are usually limits on how long the CC&Rs can be in effect without being renewed or amended. In some cases, the CC&Rs stay in force for about 21 years from the original recording date.
After that initial period, the members of the association would typically have to vote to renew or terminate the covenants; otherwise, they would, in general, expire and no longer be enforceable.
Therefore, the board and community members should keep track of the CC&Rs' renewal date, if they wish to continue to protect the integrity of the community and promote consistency amongst the uses of the properties.
Conclusion
The CC&Rs can undoubtedly do a lot to protect the integrity and value of properties located in HOA neighborhoods. However, they can also make it more difficult for property owners to have the full use and enjoyment of their properties. Thus, homeowners need to carefully consider the CC&Rs in determining whether to purchase a property located in an HOA community.
