Enforcement of Covenants
What are covenants?
A covenant is an obligation to do or not to do something with your real property required simply because you own the property. In a community association, covenants are like private laws that are enforced by the corporation like the government enforces public laws.
For example: While community associations typically are private non-profit corporations, many of their covenant enforcement powers are similar to municipalities. For example, an association adopting rules and regulations is like a county government creating local ordinances. Association assessment collection powers mirror a government’s authority to collect taxes. The architectural control authority of the community association is similar to the zoning and land use powers of the small-town government.
Use restrictions (provisions that restrict an owner’s use of their real property) and architectural controls (provisions that control the architectural improvements that can be made to an owner’s real property) are, by definition, covenants affecting the use of land.
To be enforceable from one owner to the next, covenants must be recorded in the county land records, so they remain in the chain of title of the property.
Once recorded, the new buyer “gets what they are given” … property with covenants recorded against it. The new owner does not need to be given a copy of the recorded documents for them to be enforceable. The documents are public records, and the new owner is on constructive notice of them.
Covenants must be clearly drafted, so courts can strictly interpret them during enforcement actions.
Who can enforce covenants?
The following can enforce covenants:
• Other owners, who are also subject to the covenants, can enforce them.
• Usually, the association (through the board of directors) can enforce a covenant.
• A committee of the corporation can sometimes enforce the covenants.
For instance, the architectural control committee might be given such authority.
How can covenants be enforced?
The association can impose fines ($25 per day has been approved by the Georgia Court of Appeals).
The association can use self-help – going onto the real property, fixing the violation and charging the costs back to the owner. (This can only be done peacefully. If the owner walks outside with a gun and threatens to shoot or call the police, the association representatives engaging in self-help should walk away.)
The following chart shows how covenants can be enforced by associations under the Georgia Condominium Act and the Georgia Property Owners’ Association Act.
Read our other Quick Fact articles on covenant lawsuits and common defenses used against covenants. Also, check out the L&J YouTube channel to watch our previous Morning Break Webinars or head over to the Resources section on our website to see our other articles on this topic and others.