Potential abandonment of covenant for 27 years now with sudden enforcement

Improvements are defined in our covenants, and are further detailed in the ARC section of the Declaration. A covenant (filed in 1995) states no improvements are allowed in the setbacks. The HOA has consistently allowed landscaping (defined as an improvement), entry pillars and gates, retaining walls and perimeter fences (not defined as an improvement) within these setbacks while actually clarifying the ability to place these items in the setbacks in the ARC guidelines.

There are probably at least 50% of owners (Over 130) who have at least one of these items in the setbacks. Fences were actually installed by the developer himself on some properties at the property lines as well even after the declaration of as filed. Perimeter fences are a common stay in the community, especially since we are an equestrian community (really farm animals but I digress). Fences, not being defined as an improvement have been specifically approved by the ARC since inception. Fences are specifically excluded as a structure by the county and are explicitly allowed in building setbacks, also per the county.

The HOA has suddenly, and without notice informed the community they will no longer be allowing or approving ANY improvements in the setbacks to include fences for our animals. Most folks are not even aware of this because the board did not circulate the new proposed rule changes to the community.

Why you ask had this happened? The association claims it is in response to the current lawsuit. Here is some background: several families filed a lawsuit regarding the improper amendment regarding animals- we won that suit, but it is still unresolved as the HOA desires to appeal it. The other claims in the suit were based on records and process etc., but the final claim in our suit was regarding an additional (secondary) driveway that was approved for a customer and buddy of the HOA president who was also the contractor for the project. Incidentally, the ARC chairperson also worked for the contractor/president. Secondary driveways, per this covenant have been explicitly disallowed for 27 years and we have record of a few owner requests for secondary driveways that were denied by the HOA. The basis for this claim in the lawsuit is no less due to the same covenant now in question here, though the only item in dispute were secondary driveways. Even though the summary judgement was only targeted at the owner in question who added the second driveway and NOT the association, the association responded to the summary judgement anyhow (to the apparent frustration of the judge) and brought in items concerning other improvements such as fences and landscaping and therefore introduced new arguements to the case. Despite the fact the judge declared the inability to rule on the summary judgement because he felt there were far too many facts in dispute, the association ended up abruptly, and without notice to owners declaring they would no longer approve ANY items, including fences which they have approved for 27 years. They state they desire to amend the covenants to specifically allow these things, however it has been 5 months and the board has made no attempt to move forward with an amendment.

We happened to request a fence PRIOR to the new rules being distributed to the community, yet we were still denied.

Without a doubt I believe this covenant has been abandoned and the n the last few years it can be shown plainly that the HOA has arbitrarily enforced this covenant. We intend to move forward in some manner - now that we have horses they can not be in our pasture because we are t fenced! What irony to be pursuing an appeal as they insist we are equine only yet not allow fences to contain such animals!

We have spent a generous amount as an owner group but the HOA made a claim with insurance- second claim due to a couple suits against them. It’s interesting that they are approved to appeal. I tell you it’s still one thing after the other though. Things haven’t gotten better- they are still digging in their heels after all these years. Owners have not been financially affected at this point.

What is your take on the sudden decision to attempt to enforce a covenant in a certain way after 27 years when there has been no indication from the courts that any changes are necessary.

A motion for summary judgement was filed regarding the covenant in question as it concerns driveways specifically. The defendants filed a cross motion against us and the judge denied it all: he had previously determined in a previous judgement that a secondary driveway is an additional improvement, however in this judgement stated it must be determined if a secondary driveway is an improvement! At the end of the judgement the judge called in to question a number of things such as the credibility of the ARC chair’s statements (her affidavits are all the proof the HOA brought forward), the interplay between the rules and the declaration, and a list of other items in contention which he saw as impeding a ruling for either party. Both parties saw the writing on the wall regarding massive costs and continued litigation. Both our attorney and theirs agreed this is not really a win for anyone and everyone supported a walk away only on the issue concerning the driveway. Basically, the outcome of this did not favor any party but did show some inclination to respect the written rules of the association, even if they were later shown to conflict with the Declaration. In this manner, fencing would absolutely not fall into any absolute category based on this ruling.

You are right that a covenant is only abandoned when a judge says so- but yes any new person in the community would absolutely say fences are a regular part of the landscape meeting all the “criteria” yiu mentioned to consider abandonment.

And you couldn’t be more right about this being about the egos of the board. You hit the nail on the head.

Colorado Supreme Court 1969 case law on abandonment:

https://law.justia.com/cases/colorado/supreme-court/1969/23390.html

The above cites Iowa, Kentucky and North Carolina case law. Here's the cited 1956 case law from Iowa:

https://law.justia.com/cases/iowa/supreme-court/1956/49048-0.html

From the Iowa appeals court decision:
[... I]n order for community violation to constitute an abandonment, it must be so general as to frustrate the object of the scheme so that the enforcement of the restriction involved would seriously impair the value of the burdened lot without conferring any substantial benefit on the adjoining lots. Thus, sporadic and distant violations do not in themselves furnish adequate evidence of abandonment. Thompson v. Langan, 172 Mo.App. 64, 154 S.W. 808; Ward v. Prospect Manor Corp., 188 Wis. 534, 206 N.W. 856, 46 A.L.R. 364. But they may be considered in connection with outside changes. Hurd v. Albert, 214 Cal. 15, 3 P.2d 545, *740 76 A.L.R. 1348. Violations as to types of buildings, as distinguished from use violations, will be given more or greater weight as evidence of abandonment since the former violations create permanent changes which are not easily corrected by the violator.

The Iowa Supreme Court's decision explains the reasoning behind ruling, under certain circumstances, that a covenant is abandoned. By my reading, to enforce a covenant for one lot (the "burdened lot") while not enforcing the covenant for other lots (that have long violated the covenant) reduces the value of the burdened lot and adds no value to the adjoining lots. According to the Iowa Court, this is not fair.

A Colorado law firm's short treatment of the abandonment defense:

https://altitude.law/resources/newsletter/avoiding-common-covenant-enforcement-defenses/