The following is the full question as it was submitted to AHN:
“Handbook – approved by the Association 9-7-2012 – Any addition to the outside of the unit, that will be attached to the building, must be approved by the Board of Directors. This includes TV satellite dish, sunroom, window awning, roof over entry door and patio, breezeway door, game equipment and anything else to be attached to a structure.”
How should the board proceed when an owner does not follow a directive?
Prior to placing an awning over the front entry door, an owner asked to “put up an awning just like the other (campus) awnings.” Verbal and written notice was given to the owner to get a picture or diagram of the awning and to get approval from two board members, before proceeding.
The owner did not get approval, prior to installing an awning and requirements were not met. To allow revision, the board mailed a letter requiring changes;
1. Required change due to unacceptable supports; must be four sided 2.5 or 3″ square.
2. Required change due to downspout; completely remove the downspout.
3. Required change from white to brown top.
The owner’s son came to a board meeting accusing the board of harassment and threatened to call his lawyer. He reluctantly agreed to make the changes. Over the next three months, two additional demand letters were sent to the owner to make changes or remove the awning. To date there have been no changes.
The first place to look for an answer is the handbook or other location that describes the process to be followed for a violation of the governing documents. If there is no process, then the board should meet with its counsel to determine how it should proceed (as there might be legal ramifications). Options include (1) removing the offending awning, ensuring no harm to the unit, and back-charging the owner for any cost incurred, and (2) filing suit to enforce the governing documents and enjoying (require removal of) the awning.
Sara A. Austin, Esq.
Austin Law Firm LLC
226 E. Market St.
York, PA 17403
Phone: (717) 846-2246
Fax: (717) 846-2248
The declaration of covenants will contain the enforcement procedure, which in most cases, if necessary, is litigation seeking injunctive relief to enforce the covenants. You do have to provide the notices required in IC 32-25.5-5 (Grievance Resolution) prior to initiating litigation.
Imposing fines to force compliance with covenants is not permitted in Indiana. (See e.g., Rajski v Tezich 514 N. E. 2d 347 (Ind. Ct. App. 1988).
Stephen R. Buschmann, Esq.
Thrasher Buschmann & Voelkel
Market Square Center
151 N. Delaware St., Suite 1900
Indianapolis, IN 46204-2505
Phone: (317) 686-4773
Fax: (317) 686-4777
In this case, the association will most likely have to sue the owner to get an injunction providing for compliance with the regulations.
David G. Hellmuth, Esq.
Hellmuth & Johnson
8050 West 78th Street
Edina, MN 55439
Phone: (952) 941-4005
Fax: (952) 941-2337