GregoryO (Delaware)
Posts: 4
Posts: 4
Posted:
are Covenants that have not been enforced or not specific in nature for years would they still be eligible to inforce
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Ignored covenants
Started by GregoryO • 11 replies • 792 views
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SheliaH (Indiana)
Posts: 6,964
Posts: 6,964
Posted:
You seem to have posted this as a separate topic, but haven't given any information on either one. Please be specific as to what your problem is.
By the way, boards sometimes choose to enforce certain covenants over others, or none at all for various reasons - it usually depends on a conmbination of what else is going on at the time, homeowner attitudes and whether a major problem has developed due to lack of enforcement. Sometimes people aren't aware there is a covenant on a certain issue until someone takes a closer look at the documents.
Now that doesn't necessarily mean little or no enforcement renders the covenant unenforcable - ultimately that may depend on whether someone (a homeowner or the board) pushes the matter to a court, where a judge will decide. Sometimes a board may decide "ok, nothing's really been done on rules enforcement, so starting now, we're going to educate people on what the rules are, how compliance will be monitored and what will happen if you're found out of compliance." There's nothing wrong with that either.
By the way, boards sometimes choose to enforce certain covenants over others, or none at all for various reasons - it usually depends on a conmbination of what else is going on at the time, homeowner attitudes and whether a major problem has developed due to lack of enforcement. Sometimes people aren't aware there is a covenant on a certain issue until someone takes a closer look at the documents.
Now that doesn't necessarily mean little or no enforcement renders the covenant unenforcable - ultimately that may depend on whether someone (a homeowner or the board) pushes the matter to a court, where a judge will decide. Sometimes a board may decide "ok, nothing's really been done on rules enforcement, so starting now, we're going to educate people on what the rules are, how compliance will be monitored and what will happen if you're found out of compliance." There's nothing wrong with that either.
If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
SheliaH (Indiana)
Posts: 6,964
Posts: 6,964
Posted:
forgot to mention rule enforcement isn't necessarily up to the board. Homeowners can enforce covenants against each other, so you could go after someone in small claims court yourself (or someone could come after you.)
If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
AugustinD
Posts: 5,144
Posts: 5,144
Posted:
Quote:
Posted By GregoryO on 01/26/2020 3:41 PM
are Covenants that have not been enforced or not specific in nature for years would they still be eligible to inforce
are Covenants that have not been enforced or not specific in nature for years would they still be eligible to inforce
GeorgeS21 (Florida)
Posts: 3,808
Posts: 3,808
Posted:
Yep. It depends.
In many of these sorts of circumstances, the HOA’s Board may have sufficient collective strength and funds to defend itself from a property owner wishing to avoid violations.
Other words - if the Board is firm and an owner wants to flaunt the covenants, then bring money.
In many of these sorts of circumstances, the HOA’s Board may have sufficient collective strength and funds to defend itself from a property owner wishing to avoid violations.
Other words - if the Board is firm and an owner wants to flaunt the covenants, then bring money.
JohnC46 (South Carolina)
Posts: 14,265
Posts: 14,265
Posted:
Quote:
Posted By GeorgeS21 on 01/26/2020 5:44 PM
Yep. It depends.
In many of these sorts of circumstances, the HOA’s Board may have sufficient collective strength and funds to defend itself from a property owner wishing to avoid violations.
Other words - if the Board is firm and an owner wants to flaunt the covenants, then bring money.
Yep. It depends.
In many of these sorts of circumstances, the HOA’s Board may have sufficient collective strength and funds to defend itself from a property owner wishing to avoid violations.
Other words - if the Board is firm and an owner wants to flaunt the covenants, then bring money.
WELL SAID.
GenoS (Florida)
Posts: 4,276
Posts: 4,276
Posted:
Quote:
Posted By SheliaH on 01/26/2020 4:11 PM
forgot to mention rule enforcement isn't necessarily up to the board. Homeowners can enforce covenants against each other, so you could go after someone in small claims court yourself (or someone could come after you.)
forgot to mention rule enforcement isn't necessarily up to the board. Homeowners can enforce covenants against each other, so you could go after someone in small claims court yourself (or someone could come after you.)
I've looked around (online research) and haven't been able to find a single instance of where that has actually happened.
AugustinD
Posts: 5,144
Posts: 5,144
Posted:
Quote:
Posted By GenoS on 01/27/2020 2:43 PM
Posted By SheliaH on 01/26/2020 4:11 PM
forgot to mention rule enforcement isn't necessarily up to the board. Homeowners can enforce covenants against each other, so you could go after someone in small claims court yourself (or someone could come after you.)
forgot to mention rule enforcement isn't necessarily up to the board. Homeowners can enforce covenants against each other, so you could go after someone in small claims court yourself (or someone could come after you.)
I've looked around (online research) and haven't been able to find a single instance of where that has actually happened.
GenoS (Florida)
Posts: 4,276
Posts: 4,276
Posted:
Quote:
Posted By AugustinD on 01/27/2020 2:55 PM
In your own state, see https://www.courtlistener.com/opinion/1808790/kirschner-v-baldwin/? and maybe the various other cases the latter cites. Took like three minutes of googling.
In your own state, see https://www.courtlistener.com/opinion/1808790/kirschner-v-baldwin/? and maybe the various other cases the latter cites. Took like three minutes of googling.
Excellent, thank you AugustinD. I spent a lot more time than that a few months ago searching for something similar and didn't find this. Interestingly, I had lunch last week at a roadside place not 4 miles from where these people live(d).
In October 2003 the owner who wanted to build an 8-car garage filed his plans with the HOA. HOA President was out of state from July through November and knew nothing of these plans until he got back to Florida at the end of November. Ultimately the HOA decided not to pursue legal action against the garage which violated the CC&R setback restrictions.
The neighbors filed suit in August 2003 to enforce the CC&Rs after the HOA refused to do so. The trial didn't take place until 3 years later.
The case provides a great example of how judges are very unpredictable and expecting them to mete out "justice" is a crap-shoot at best. The initial judge said the neighbors who sued did not have standing because, "the Declaration did not expressly grant lot owners the right to enforce the subdivision restrictions."
It took an appeals court about a minute to disagree with the trial court on this. "As a clearly intended beneficiary of the Declaration, Kirschner had the right to enforce the subdivision's restrictions."
I bet the trial court judge suffered no consequences for his ill-advised ruling. If the neighbors couldn't afford to file an appeal, they would have been out of luck. Some judges are BAD and you MAY lose your case even if you're in the right because a moron judge doesn't know the law or how to apply it. The appeals court found 2 additional reasons to reverse the trial court.
I'll search to see what happened after the appeals court remanded the case back to the trial court.
That's a very interesting case involving a bad neighbor, a bad judge, a bad municipality (they granted a setback variance on the wrong side of the proposed 8-car garage) and a bad HOA board.
Thanks again, AugustinD. That one's a keeper.
AugustinD
Posts: 5,144
Posts: 5,144
Posted:
Quote:
Posted By GenoS on 01/27/2020 6:19 PM
The case provides a great example of how judges are very unpredictable and expecting them to mete out "justice" is a crap-shoot at best.
The case provides a great example of how judges are very unpredictable and expecting them to mete out "justice" is a crap-shoot at best.
TimB4 (Tennessee)
Posts: 21,059
Posts: 21,059
Posted:
Quote:
Posted By GregoryO on 01/26/2020 3:41 PM
are Covenants that have not been enforced or not specific in nature for years would they still be eligible to inforce
are Covenants that have not been enforced or not specific in nature for years would they still be eligible to inforce
Yes, if not challenged in court.
If challenged, it could go either way.
CathyA3 (Ohio)
Posts: 6,299
Posts: 6,299
Posted:
Our CC&Rs have a clause stating that failure to enforce any portion of the governing docs does not preclude enforcement in the future. Our lawyers also included language in the amendments they wrote that said the "unenforceability" of one part of the amendment does not render the rest of the provisions unenforceable.
Probably wouldn't stop someone who wants to fight about it in court, but may increase the likelihood that a judge would find in favor of the HOA.
Probably wouldn't stop someone who wants to fight about it in court, but may increase the likelihood that a judge would find in favor of the HOA.
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