What can association do about owners leaving trash cans out?
Q: A couple of owners in our association leave their empty garbage cans at the curb for many days after the weekly pickup by the local waste hauler. Our association does not do anything about it and our town has an ordinance requiring garbage cans to be removed from the curb and stored the evening of the garbage pickup. Does the association have any remedies? Is there anything we can do to force the village to enforce their ordinance?
A: First, with respect to the association, most association boards adopt specific rules and regulations that designate a time deadline by which garbage cans must be removed from the curb and properly stored. If your association does not already have such rules, then the board should consider adopting them. Moreover, the typical declaration of covenants for an association includes provisions that prohibit owners from doing anything that is in violation of federal, state or local laws or ordinances. So, the violation of the municipal ordinance regarding waste containers would also likely constitute a violation of such a covenant.
In this situation, I would suggest that the board proactively remind the residents about any association rules, covenants or village ordinances regarding removing and storage of garbage cans. If that does not eliminate the problem, then the board can start sending notices of violation and levying fines against those owner who continue to commit violations. A fine could only be levied, though, after the board issues a written notice of violation to the offending owner and provides them with an opportunity for a hearing. With respect to the village and at the same time, residents within the community or the board of directors can contact the village and request that they enforce their ordinances regarding garbage cans. Most villages maintain an ordinance enforcement department for purposes of violations. Both of these remedies (association and village) can be pursued at the same time; it does not have to be one or the other.
Q. I live in a subdivision of single-family homes, developed in the early 1960s. Early on, an association for our subdivision was incorporated with the state, and bylaws were also created at about that time. However, there is no evidence of a declaration of covenants recorded against the individual homes, and we’ve been told that membership in the association is voluntary. The association’s annual dues are fairly inexpensive and our responsibilities are limited. Historically, almost all the owners paid these dues, without question. However, some of the newer owners have refused to make the payments to the association, citing the lack of recorded covenants and/or absence of a legal obligation on their part. How can we make the payment of dues mandatory?
A. This type of situation is not that rare. We work with many older communities (1960s or earlier) that may have originally been intended to serve as summer or lake home communities but have ultimately evolved into permanent residences with the expansion of the suburbs. There can certainly be other origins of such communities as well. Unfortunately, In order to make dues mandatory where there were no assessment covenants originally recorded against the lots, each and every current owner is going to have to agree or consent to this new legal obligation. This is typically accomplished by having covenants prepared, unanimously approved and then recorded against all the lots. The covenants would also have to include appropriate language to bind future owners. Unanimous consent can be accomplished through a lot of “leg work” by dedicated residents.
In the absence of such a successful effort, the association might be able to assert a legal claim against owners who do not pay assessments but enjoy the amenities provided. This method typically requires potentially expensive litigation to resolve.
• Matthew Moodhe is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at condotalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.