Deed restriction violations under declarant

Margaret,

The answers to those questions will depend on the language within your governing documents.

Did the Declarant have the authority to waive any restriction (I have actually seen documents that contain such language)? If the Declarant did, then you can't enforce.

Did the member request prior approval and receive prior approval? If they did, then even if there wasn't authority to waive a restriction, the Association could find itself involved in legal action to force the Association to pay to bring the issue into compliance. This would be because the member acted in good faith and it was the Association, by approving the changes that would have caused damages to the member.

Was the Association aware of the issue previously, and if they did, how long ago? A member may be able to use a legal defense of laches to win any legal action to enforce a restriction that the Association was aware of but took no action to enforce when they were aware of it.

My suggestion would be to:

1) Start architectural files for each property (so the Association is organized)
1) identify the issues
2) Search all available documentation (past minutes, etc.) to see if approval was granted.
3) Ask the members if they have documentation of approval (if they do, accept it)
4) Grant authorization where it is likely authorization would have been approved
5) Where there are a lot of the same violation, consider changing the rules/documents to permit such items rather than forcing the members to remove what is obviously something many members desire.
6) Start enforcement on those who were unable to provide authorization and the issue likely wouldn't have been authorized in the first place.

Larry,

I expect that after going through steps 1-5 there will only be a few, if any, issues that would require enforcement.

My Association had a similar issue but it was due to poor record keeping. The Association didn't have the documentation it should have. Therefore, we searched Association records and cleared up a few of them. Contacting the individuals explaining that the Association doesn't have documentation of the exterior changes and asking that they provide a copy of the approval letter, correct the issue or simply submit a new request cleared up a lot of them. Amending the documents, corrected a few more.

I agree but the OP's question was Declarant granted/allowed or maybe even ignored variances. My belief is most of the violations will remain especially if the Declarant simply says yes I knew about them.

One of the problem areas is when the ACC turns down a request for something others were allowed under the Declarant. Same as when a new BOD gets tough.

The problem is that the new board will be limited by state law, both statutory and common law, as to what they can do about violations that occurred in the past and have been allowed to continue without objection from either the association or any homeowners. The non-waiver clause would not prevent enforcement of current and future violations but would not likely overcome state law regarding enforcement barred by the statute of limitations.

Cyrstal

I am not nor do I play a lawyer.

A Declarant, as well as an Association, generally can offer a waiver. Really no way to stop them especially after the fact. In the case of an association, one could recall the BOD but one cannot recall the Declarant.

I suppose if one saw something they did not like, they could go to court to get an injunction to stop the work.