The Covenants Versus the Code

From enticing code enforcement officers to enforce violations in the community to ensuring that a community association satisfies all maintenance requirements, managing an association’s relationship with the county can be a difficult job.  One issue in particular is brought to me on a regular basis for review:  how does a community association’s obligation to the county affect its relationship with its members when a county ordinance appears to contradict the terms of the covenants?  As further explained below, a difference between the covenants and a county ordinance generally does not result in as big an issue for the Association as an owner or board may think.  One quick note on terminology:  I use “county” throughout even though the same rules generally apply to cities and sometimes even the state and I use “ordinance” to describe the body of local laws even though they can sometimes be termed rules, regulations or codes.  

When an Ordinance Imposes a Greater or Lesser Requirement than the Covenants

A good example of a county ordinance imposing a greater requirement on an owner than the covenants is a situation where a feature on a residence is no longer “up to code” even though it is maintained in compliance with the covenants.  Since an association only has the legal authority to enforce the terms of its covenants, ordinances imposing greater requirements must be enforced by the county.  There are exceptions to this rule typically relating to covenants requiring that all residences be code-compliant or where the non-compliance creates insurance or safety issues, so it is always good to get a legal opinion.  

On the other hand, sometimes the covenants will restrict something that the county allows.  Once again, this often has to do with maintenance or landscaping requirements but can also stem from other things (e.g. fireworks, street parking).  Unless otherwise provided for in the ordinance or under Georgia law, an association has every right to enforce covenants that are more restrictive than county ordinances.  In these cases, a board can just remind an owner that they are bound by the covenants in addition to the county ordinances and they must abide by both.

When the Covenants Appear to Contradict a County Ordinance

Unlike the situations above, this has more to do with an ordinance that creates an obligation for the association while the covenants say that the exact same obligation is the responsibility of the owner.  The easiest way to explain this scenario is through a specific example.  A number of years ago, Forsyth County passed a storm water runoff ordinance requiring that community associations maintain all storm water runoff facilities in a community whether located on common property or owner property.  The obvious problem is that, especially in single family detached communities, many covenants expressly provide that an owner is responsible for all maintenance on their lot, even if that is maintenance of storm water runoff facilities.  

The issue is brought to me when an association tells an owner that maintenance needs to be done to a stormwater runoff facility on their lot, the owner contacts the county and is told that the association is responsible for maintenance of the stormwater runoff facilities.  Not surprisingly, the owner often goes back to the association with the county’s statement and refuses to provide the maintenance.

Here are two accurate statements:  (1) the county can hold the association responsible for the maintenance of any stormwater runoff facility in a community and (2) the association can still require an owner to provide part of that maintenance in accordance with the terms of the covenants.  This is because there are two legal relationships involved.  The first is the relationship between the association and the county and is set by the ordinance.  The second relationship is between the association and the owner and is set by the terms of the covenants.  Even though the association is liable to the county if the maintenance is not performed, it still has the legal right to require the owner to provide any maintenance required of them under the covenants.  In short:  when a county ordinance requires an association to maintain something in the community the association still has a legal right to require an owner to provide that maintenance pursuant to the covenants.

In conclusion, an association typically has the legal right to enforce the terms of its covenants against an owner even where those terms differ from county ordinances.  In addition, it generally has the right to require an owner to perform a duty that the county assigns to the association as long as the terms of the covenants allow the same.  As always, there are exceptions to every rule and a board should always contact an attorney to get an opinion when this type of question arises.