Condo Law Watch

Addressing Violations in Owner Construction Projects

As a consequence of prevailing attitudes in many courts, homeowners may take the position that it is better to ask for forgiveness than for permission. That is why a key to effectively preventing construction violations may be prompt association legal action as soon as the board is aware that work has begun. Your association’s attorneys may be able to file suit to obtain a temporary restraining order (TRO) within a day or two to stop construction that the association can show is improper, followed by a request for temporary and permanent injunction. If the association acts quickly enough to get in court before the project is finished, a court may well order improper structures to be removed. If the association delays or waits to take legal action until after the structure is completed, some declarations would deem the structure to have been approved and even if not, courts may not be willing to order that the structure be torn down.Consistency in enforcement is also important. If a homeowner can point to one, or even several, structures in the association that are in violation, but were built without a legal challenge, it may be difficult to convince a judge that another such project must be stopped, much less removed. On the other hand, if for example no perimeter fences have ever been approved by the board and there are none for a violator to point to, a court will be more likely to uphold association action to prevent that owner from installing a perimeter fence without permission.

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