Resident fence request with not enforced other fences

Hello All..

Our board is in kind of an odd spot.

The old board of 20+ years did not enforce fence restrictions (fences going to the front of the home)on several homes. Some of the homes had the fences for 5+ years and no violations were ever sent or mentioned. Although other residents did get violations for other things such as broken windows and unapproved garage door colors.

The rules require the fence to be 4-6', white vinyl and cannot extend past the rear of the home. The resident wants to bring his fence up to the side of the home but follow all the others rules.

Our understanding is the lack of enforcement for 5+ years on these issues, we cant deny the resident who is requesting the same. It feels like we lost our ability to enforce this and/or approve it since so many years passed. Some of the homes even now have new owners. The requesting resident pointed out several homes have exactly what he wants to have done and even planned on using the same company to install the fence.

Our view is to approve to avoid any legal issues in the past. Have we lost the ability to enforce?

AndyJ, in Missouri and I think most or all of the country, one just does not know what a court would say about the particular circumstances. If I were on your Board, then I would consider the percentage of homes in violation of the covenant and how many years have gone by. Are the violations (that have not been addressed) "persistent, obvious and widespread" (quoting Missouri case law)? I would consult with the HOA attorney, unless the Board insists on not spending the money for legal advice. I would keep in mind that one never knows how a trial court would rule. If the ruling is not in the HOA's favor, then the expense of appeal is prohibitive.

Elaboration:
This issue falls into the category of "abandoned covenants" or "waiver of covenants." By my reading, state statutes generally do not tend to address the criteria for when a covenant may be said to be abandoned or waived. Rather, case law in each state may speak to the criteria. In Missouri, I do not think there is a hard and fast year about the exact number of years that need to have passed. Nor is there a hard fast rule about how many homes must be in violation while the HOA ignored the violation.

Here is some of Missouri's case law that may help a person understand how Missouri courts think about abandoned covenants:

1985
https://www.courtlistener.com/opinion/2419258/dierberg-v-wills/?q=&court_ca10=on&order_by=score+desc

All of the following cite the 1985 case above and speak to abandonment of covenants:

1988
https://www.courtlistener.com/opinion/1176406/bbp-corp-v-carroll/?q=cites%3A(2419258)

1989
https://www.courtlistener.com/opinion/1775340/murphy-v-timber-trace-assn/?q=cites%3A(2419258)

1992
https://www.courtlistener.com/opinion/1789404/connelly-v-schafer/?q=cites%3A(2419258)

1996
https://www.courtlistener.com/opinion/1564721/kling-v-taylor-morley-inc/?q=cites%3A(2419258)

From the 1985 case:
No hard and fast rules dictate what acts or omissions may constitute waiver or abandonment of a restrictive covenant. *466 Each case must be decided upon its particular facts, but certain well established principles are generally applicable. Gibbs v. Cass, 431 S.W.2d 662, 668 (Mo. App.1968). The law favors the free and untrammeled use of real property, but valid restrictions thereon cannot be and are not disregarded by the courts. Lake Saint Louis Community Association v. Kamper, 503 S.W.2d 447, 449 (Mo.App.1973). The right to enforce a valid restrictive covenant may, however, be waived by conscious acquiescence in persistent, obvious and widespread violations thereof. Id. If restrictions apply to an entire area and redound to the benefit of all property owners in the restricted area, then waiver or abandonment occurs only when violations of the restrictions are so general as to indicate an intention or purpose to abandon the plan or scheme intended to be maintained by the restrictions. Eichelsbach v. Harding, 309 S.W.2d 681, 686 (Mo.App. 1958).

Unfortunately the board is absolutely broke at the moment. Spending money on any legal issues at this time would be pure negligence. Once the funds get back to normal (absurd previous board spending) we will be able to take action as needed for other incidents.

Thank you for your information!

By my reading, in disputes over covenants alleged to be abandoned, I believe the HOA wins more often than the homeowner.

Still, which way a trial court will rule is a roll of the dice. The issue over which either a HOA or HOA owner wants to go to court had better have high stakes, or else it is just not worth the risk.

Remove the rule since it has not been enforced for many years and apparently no owner petitions were filed asked the Board to follow this rule over the past years. Look at the other rules that have not been followed and possibly have them updated.