It has become increasingly commonplace for a subdivision to be subjected to a set of protective covenants (also referred to as restrictive covenants).
The usual process involves a developer of a subdivision recording a set of covenants in the land records at the very beginning of the development. Then, when lots or houses are sold, they automatically become subject to those covenants.
The purpose of these covenants is usually to protect the value of all of the homes in the subdivision. And, they are usually enforced by a Home Owners Association (“HOA”).
What is in the covenants?
Sometimes, the protective covenants are fairly simple and short. They might, for example, prohibit the parking of any disabled vehicle on the property, prohibit fences that extend beyond the front of the house, prohibit parking in the street, and similar matters.
Many times, however, protective covenants are very lengthy and detailed. Often they create an Architectural Control Committee whose job is to enforce the covenants.
These committees are often given broad powers as to how the homes are designed and maintained. Sometimes the committee will have power over the smallest detail, such as the type of paint to be used on a garage door or the shape of a mailbox.
In such subdivisions, a homeowner that undertakes renovations to the house without obtaining approval of the committee may be forced to change and redo those renovations.
So, it is important to know what the protective covenants are with respect to the subdivision in which you live.
Are there ways to get around the covenants?
Generally speaking, if the terms of the covenants are clear, a court will enforce them as written.
But, there are some situations in which a court will refuse to enforce a protective covenants against a homeowner.
Implied abandonment of the covenants
If an HOA has failed to enforce a particular covenant in the past, then when it tries to do so against a homeowner, that homeowner will have an argument that the HOA effectively abandoned the covenant, thus making it unenforceable.
For example, assume the protective covenants for a particular subdivision prohibit the installation of basketball goals on the property.
Further, assume that out of 70 houses in the subdivision, 10 of them have basketball goals installed.
After Homeowner A installs a basketball goal, she receives a letter from the HOA demanding that she take it down. In that situation, Homeowner A will have a good argument that the covenant was effectively abandoned by letting 10 other homeowners have basketball goals.
There is no one single test for determining whether a covenant has been abandoned. The court will look at all of the circumstances, including:
-The number of times the covenant has been violated in the past without the HOA taking any action; and
-How long the prior violations have existed.
Often, a court may refuse to enforce a covenant on the grounds circumstances have changed to the extent that the covenant no longer secures the intended benefits.
For example, assume that the northern portion of a subdivision fronts a roadway. So, the developer adds to the covenants a provision that the homeowners along the roadway must maintain a brick wall 8 feet high to reduce noise coming from the roadway.
Assume that 20 years later, government officials decide to relocate the road so that it no longer is adjacent to the subdivision and is no longer being used for vehicular traffic.
Finally, assume that a portion of the original brick wall has collapsed.
In that instance, if the HOA filed a lawsuit to require a homeowner to rebuild the wall, a court would be justified in refusing to do so because the covenant no longer provides the benefit it was originally intended to provide.
Failure to properly adopt the covenants
The examples given above are based on the assumption that the covenants are otherwise valid. If a HOA seeks to enforce a covenant against your property, you should always investigate to be sure the covenant was properly adopted.
Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.