Lawsuit Questions! Any Help is Appreciated!!

Legal advice would best be gotten from a lawyer, even then that is just an opinion, it's hard to say what a given judge will rule on a given day. That said I'll give you my 2 cents, although that may be overvaluing it.

I think the fact that there is no committee works in your favor, since one of things that judges consider about contract disputes is reasonableness, and it is not reasonable to require a committee approval and not provide the committee. The fact that others have violated the covenants without any consequence is probably also in your favor. Finally, a lot of judges are just fed up with what they feel are petty HOA and covenant disputes and can be predisposed towards the owner.

One more thing to consider is that many people threaten to sue, because that part is free. Actually suing is a lot rarer because you have to put your money where you mouth is and most people have more mouth than money.

1) Anybody can sue anybody for just about anything, whether your neighbors have any chance of prevailing, I can't say.

2) Typically each side pays their own legal expenses, but judges do have the ability to award expenses so the possibility of one party paying for both sides of the lawsuit does exist.

3) I don't think standard Homeowners insurance covers being sued for something like this, but that is a question best asked of your agent or insurance company.

I'll also add that many covenants have a clause that covers your situation, once you have attempted to notify the committee, the request is deemed granted if they don't answer in a given number of day, for example, 30. You could send a certified request to the last known address of the builder and at the very least you've have evidence that you attempted to comply with the rules.

All of these are legal questions, so your best bet is to contact an attorney. As far as your homeowner's police is concerned, you'll have to run that question past your agent, but be sure to read your policy first, so you'll understand what it does and when.

Now, as far as CCR violations go, any homeowner can usually sue another for violation of the covenants, but whether they'd win or not depends on the judge and how well both sides make their case (or not). People sue for a ham sandwich if it doesn't have enough lettuce, but do they have a case? Again, who can say?

You say the CCRs were created in 1978 - is the builder still around or is the community now run by the homeowners? It sounds like you don't know and that's the first thing you need to figure out. I suspect the builder's long gone, since it's been 40 years, which means there should be a board of directors running the show. In most communities the board would charter the architectural committee and dictate its duties - some simply make recommendations on what type of design standards should be adopted (fences or no? if yes, vinyl or wood or iron? And so on). Other communities let the committee review and approve the exterior requests, although the board reserves the right to overrule that.

So, why not go to the Board and talk to them to see what happens? What is the process if you want to install a fence or make any other exterior changes in your community (you should already know what that is, but better late than never.) As for your neighbors, threats and carrying out the threat are different things, so I wouldn't worry about a lawsuit for now - remember, they still have to convince a judge why it's so objectionable and that may or may not work. And lawsuits cost money - they may find it's not worth the effort (especially if there's at least a 50% chance they'd lose.

But in the spirit of being good neighbors, ask them why they object to a fence - maybe there's something minor about the idea that can be easily resolved.

Finally, CCRs should be flexible enough to change as the community changes - some things don't make any sense today, while others need to be tweaked. If you really care about fences, maybe now is the time to offer to help the board review the CCRs by establishing a committee that would do things like poll the homeowners to see what they think about various restrictions. If there have been other rule violations, the board could debate as to whether to grandfather those in, but prohibit any new ones.

This site has all sorts of conversations about CCR enforcement, exterior changes and the like. You may want to take a look at a few and get some ideas. Just be mindful of when the conversation occurred something from ever a year ago may not be valid and just because something flies in one state doesn't mean it will fly in yours. That's why you need a lawyer to get answers to legal questions. Good luck!

Thank you all so very much for so generously taking time out to help me out with my situation.

Douglas is indeed correct, there is NO BOD or Architectural board that was every appointed by the builder. The company is no longer in business but given the magic of the internet, I was able to track the builder down and call him this past weekend! The builder stated that he never appointed any BOD , HOA or Architectural board at all. Hence it is strange that they expect us to seek permission without having a legitimately appointed board.

Last year when we moved in, I brought up the issue of building a fence and all the neighbors got together (17 homes) and most opposed the idea because they want 'unobstructed views'. It just seems like selective enforcement to me given that they did not enforce any of these for 40 years and now suddenly wish to start. Furthermore there is a fence in the neighborhood but unlike ours it is see through.

We have dogs and are planning to start a family soon . We also greatly value our privacy and moved in here because we saw that there was a fence and a pool in the neighborhood and the covenants we were presented were not being enforced. This was also stated to me verbally at closing by the seller last year.

I had attached our covenants as a pdf to my OP and have done so here again. It is a simple 4 page document and I am referring to clause 4 and 7. Please feel free to have a look at the attached document and let me know your thoughts.

Finally, I put together a document of violations in the neighborhoods and it seems that most of the covenants have been violated in some measure, from swimming pools and fences to auxillary buildings like Gazebos.

Let me know what you guys think, hopefully the covenant document offers greater clarity.

THANK YOU SO MUCH!!!!

Arjun,

Your document doesn't prohibit in-ground pools or fences. They simply require prior approval from the Association.

Note: Typically, if no committee has been appointed, then the Board serves as the committee.

I would recommend sending your requests to the Board. In the request, state that you are not asking for anything that hasn't been approved in the past for others - then state those addresses where fences, pools, etc. are in place. Then see what happens.

If you receive permission from the Association for the fence, you are not in violation of the covenants.
Simply make sure the permission is in writing (letter or email) and keep it forever.

Hope this helps,

Tim

I would send a request to the last known registered agent for the Association or track down the builder.

Do you pay assessments? If you do, send a request to the address you send assessments.

Was the Association ever incorporated? If it was (or if the builder was) you can identify who the registered agent was though the States Corporation Commission.

Heck, the address of the bank is on the document.
Send a letter there.

Yes. You would have to organize, call a meeting of the general membership and hold elections. Once a Board is elected, the board can appoint a committee (or serve as the committee).

Again, talk to an attorney to find the proper way to do this within your State and County.

A lot of people on this thread need to read more closely.

The covenants do not create an HOA, there is no HOA, and there never has been an HOA. Thus there is no BOD, never has been a BOD, and there is no legal standing for a BOD to exist.

There are only covenants that create deed restrictions. The covenants are a contract between the property owners that the covenants apply to, any owner can take legal action to enforce the deed restrictions. The latter is generally true even when an active HOA exists.

Also note that the original poster is in Illinois, if he was in Florida MRTA would have extinguished the deed restrictions a decade ago unless somebody moved to preserve them.