Although many community associations have self-help rights in their governing documents, it’s not always easy to know when to use them. In this context, self-help generally refers to a community association’s power to: (1) correct a covenant violation itself: and (2) charge the costs of correction back to the offending party. Some community associations have carte blanche self-help language in their governing documents. Others only have it with respect to architectural control and/or maintenance violations. And some don’t have self-help rights at all.
But even if a community association has unlimited self-help rights, utilizing this power is only practical in certain situations. For example, an association may decide to mow an overgrown lawn if the property is vacant and the owner is nonresponsive to violation letters. Not only is this type of maintenance relatively cheap, but there’s also a good chance that the association’s vendor can perform the work without any interference from the owner (i.e., because the owner is offsite). Compare this, however, with an owner-occupied home that needs to be pressure washed and painted.
In this example, the maintenance is more expensive and time consuming. Additionally, since the owner lives at the property, it’s likely that he/she will object to the maintenance if/when the association’s vendor shows up (e.g., by calling the police for trespass). The underlying takeaway is that self-help is usually only feasible if it’s both (1) inexpensive (i.e., the association can carry the costs until reimbursed by the owner) and (2) can be easily carried out (i.e., the association can correct the violation quickly and without putting anyone in danger).
If correcting the violation fails the two-prong test above, the situation will likely not be ripe for self-help—regardless of what the association’s governing documents may allow. This means the association will need to resort to its other permitted enforcement remedies, which includes, but may not be limited to, fining, suspending voting and/or use privileges, and filing a lawsuit for injunctive relief. And keep in mind, obtaining a court order may be necessary anyway to overcome the owner’s trespass claims with the police.
Notwithstanding the above, community associations should also be aware that failing to exercise (or attempting) self-help in proper situations can be frowned upon by the courts. For example, levying tens of thousands of dollars in fines for a covenant violation may be unreasonable if the violation could easily be corrected by self-help for a small fraction of that amount. This what the Georgia Court of Appeals recently suggested in Deerlake Homeowners Association, Inc. v. Brown, 2021 Ga. App. LEXIS 523 (Oct. 26, 2021) (holding that the association’s contractual right of abatement precluded a judgment for over $80,000 in fines plus injunctive relief for simple maintenance violations). The association in Deerlake is currently seeking review by the Georgia Supreme Court, so this issue is certainly one to keep an eye on.
In sum, self-help can be a very effective tool for a community association if properly implemented. On the other hand, it may not be realistic to use self-help for every violation, despite what the governing documents may say. This means boards and property managers need to evaluate potential self-help opportunities on a case-by-case basis. And if you’re still unsure whether to move forward, it’s probably best to seek the advice of your association’s attorney.