Tips from our Community Associations Team
Your local government (county, city or town) is there to serve. The local government regulates the owners of your association through zoning, taxes them on your real estate and personal property, and provides services such as schools and law enforcement, just for starters. You see the local government at work, providing your community services for that tax money.
Perhaps as a result, it is common to think that the locality should enforce your association regulations and covenants. After all, it is just like zoning, right? Unfortunately, the answer is generally no – with some limited exceptions.
Sands Anderson’s local government attorneys, including myself, have answered this inquiry many times over the years when serving as a county attorney.
A locality may act only as authorized by state law under a common law doctrine called the “Dillon Rule.” And no state law allows a local government to enforce an association’s regulations and covenants, which arise not directly from the law but rather from private contractual and property instruments, as permitted by law. Unless it is also a landowner in the association like you, your local government is not a party to those contracts and instruments. While an act might also be regulated by zoning or some other local ordinance or state law enforced locally, it may not be. And more importantly, whether the regulation or covenant is also violated (or not) is typically not relevant to the local government’s response.
Those few limited exceptions?
A few localities do have ordinances and/or have accepted proffers which require the developer to include certain provisions into the association’s covenants to benefit the local government and its citizens. In those limited cases, the local government may have rights and/or remedies which it can exercise at its option. And sometimes there is seeming overlap between local government ordinances and private association covenants in the types of things regulated. For example, a local government ordinance may specify a maximum height of grass (or weeds) and the local government may have the right to come in and mow property at the cost of the landowner in the event that the landowner does not comply with the ordinance. In this case, the local government would be enforcing its own ordinance and not your association’s private covenants. The association may have similar enforcement rights or the association’s rights may be more limited contractually depending on the language of the covenants.
So feel free to involve the locality in ways it has authority to help you and your association. But don’t expect to have the local government enforce your covenants and association regulations.