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BSW News Blasts >
What to Do about Flagrant Covenants Violations
What to Do about Flagrant Covenants Violations
Feb 25, 2023
The main purpose of the Braun Station West Community Improvement Association (BSWCIA) is to protect the value and desirability of our properties. This is stated in our Declaration of Covenants, Conditions, and Restrictions (commonly referred to as Covenants). The Covenants achieve their purpose by placing restrictions on what we can do with our properties. For example, if someone wants to build a shed, it must meet certain requirements and be approved by the Architectural Control Committee. Everyone who buys property in BSWCIA receives a copy of the Covenants and policies governing the use of our properties. The Covenants are in fact considered a type of contract, and by buying property in BSWCIA, we all agreed to abide by the Covenants and policies.
While roughly 80% of owners follow the Covenants and policies and many people take pride in the appearance of their properties, unfortunately, some people don't. Some of the most common property violations we see are yards that need to be maintained, unused vehicles and trailers stored in driveways, trash in yards, or trash carts left on the street. For any type of property violation, we have a Property Maintenance Policy and Procedure that lists the steps we take to encourage owners to bring their property into compliance: 1. Postcard with 10-day deadline 2. Letter from manager or Board president with 10-day deadline 3. Certified letter from Board president with 30-day deadline 4. Legal action, such as a demand letter or lien. Owners who ignore the first three notices are unlikely to respond to a legal demand letter from the Association's attorney. There are owners who have brazenly flouted the covenants for years, ignoring letter after letter, even the ones that come from the attorney.
What if there were a way to financially incentivize following the Covenants? That is, impose a financial cost for repeatedly ignoring notices of violations? There is such a way open specifically to HOAs! It's called small claims court. You've probably heard of it. The Texas Property Code, Section 202.004, has the following provisions:
(b) A property owners' association or other representative designated by an owner of real property may initiate, defend, or intervene in litigation or an administrative proceeding affecting the enforcement of a restrictive covenant or the protection, preservation, or operation of the property covered by the dedicatory instrument.
(c) A court may assess civil damages for the violation of a restrictive covenant in an amount not to exceed $200 for each day of the violation.
The easiest and cheapest way to recover civil damages is in small claims court, which in Bexar County doesn't even have a filing fee, although there’s a $65-85 process service fee. In addition, small claims court is "the people's court," so engaging our attorney wouldn't even be necessary. Any Board member or homeowner appointed by the Board could represent the Association. So the cost to the Association would be minimal and would be recovered once judgments are awarded and paid. The Association wouldn't even have to seek the full $200 per day; typically, most HOAs seek 5-10 days of civil damages (i.e., $1,000-2,000) in their deed restriction violation judgments or even more depending on the facts and circumstances of each case. The amount requested should be enough to motivate the homeowner to correct the violations and encourage other homeowners to resolve their property issues before they reach the legal action stage.
Even before legal action is taken, homeowners have many protections under the Texas Property Code and our Property Maintenance Policy and Procedure. Our policy requires homeowners to receive at least three notices, including the state-mandated certified letter. Homeowners are given a reasonable period of time to correct violations, may request a hearing by the Board or a committee appointed by the Board, and may request an extension to the deadline for extenuating circumstances. Owners serving on active military duty may have special rights under the Servicemembers Civil Relief Act. And of course if a case is taken to small claims court, a judge or jury will decide whether to assess damages based on the merits of the case.
So what do you think? Should our Association file small claims lawsuits against homeowners who fail to correct Covenants violations after the 30-day deadline stated in the certified letter has passed? To help gauge homeowners' interest in pursuing small claims, please take the following 4-question survey: https://forms.gle/o4yz5ENVT8NWBiP49
This message is being cross-posted to both the old listerver and new BSW News Blasts. If you receive both, you can safely unsubscribe from the listerver messages, which will be discontinued soon anyway.
Sincerely,
Keith Riggle
President, BSWCIA
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© Braun Station West
Community Improvement Association
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8630 Tezel Rd
San Antonio TX 78254
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210-680-3009
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