Abandonment

This is a new thread started from a similar thread in 2013

Our association has openly and willingly violated our covenants for 25 years by allowing 3 rail post and dowel fences at the property line as well as other improvements within setbacks. The association in their own words estimates about 25% of the 246 units have such fencing (over 60 units) and near 90% have other improvements in the setbacks (both approved and unapproved). The allowance of these fences, landscaping and a few other items within the setbacks were specified and allowable in the ARC documents and the rules of the association.

The covenant states that no improvements shall be allowed in the setbacks other than a single driveway to the residence.

Fast forward- there is a lawsuit related to that covenant for a specific improvement which had not been approvable in the community for 25 years. The association however brought up all the other improvements that they HAVE approved in the setbacks (albeit in violation of the covenant) as a defense in the summary judgement filed. Once they openly admitted their actions in legal court documents I think they realized they shot themselves in the foot and then decided they now must do something to remedy their 2 decades of covenant breaches. Mind you, this lawsuit has sat in the courts for 4 years now and the HOA decided to enforce the covenant about 3.5 years into the lawsuit AFTER continuing to approve fences and other items in the setbacks the entire 3.5 years of the lawsuit. That portion of our suit has now been dropped by all parties and there were no rulings or penalties negatively impacting the association.

We were building a barn with the plan to get horses after 7 years of living here. After the barn was complete we submitted for our fencing- same specs as the other 25% of the owners. The ARC denied our request and reasoned that at a board meeting JUST THREE DAYS PRIOR to our request, the BOD changed the rules and have now decided to enforce the covenant as written. Since that day, with zero written notice to the community (which is in violation of our policy, Bylaws, AND Declaration) fences and other improvements in the setbacks will no longer be allowed. They have sort of enforced this new stance equally since then (the last year) however I know of at least 3 others who put up their fencing in the setbacks without approval. Ultimately my attorney advised us to install our fence due to latches and waiver, and because our horses had gotten out a couple of times which is super scary. So, we built our fence, which the BOD was completely aware of. There was no notice, no cease and desist, nothing from the association. It took over a month to build the fence and about 3 months later we receive a violation and threat for fines and/or legal action if the 1300 feet of fencing is not removed. Lmao. At this point we are still in the violation process so there has been no action-

Ironically, the BOD has now decided to try to amend the covenants to allow all of these previously allowed improvements. Now we are in the active stages of a community vote to allow these items to include the post and dowel fencing. The community is completely confused however and people keep asking over and over exactly why are we voting on these things when these things have already been allowed and everyone has them? Also there have been the comments that "I just want the community to stay the same" so why the changes. See the standard has created a community that everyone believes is normal, standard, and expected, yet here we are voting on these items to now allow them??? Doesn't make sense to people and they are right to be confused.

There are many people now who desire these improvements most people in the community already have, and have been denied, and are waiting for the outcome of these votes. If one or all of these votes fail, I am wondering what this community feels would be appropriate? Would a judge still likely declare an abandonment of this covenant due to the history of approvals over such a long period of time; and that a supermajority of the community already has these improvements? Have both the association and owners effectively changed this covenant by lack of enforcement for 25 years creating the standard of a community that now we are having to fight for to keep because the HOA chose to not follow the covenants and now feels they must? Does the HOA have any standing to now enforce this covenant, albeit without proper notice to residents regardless of the outcome of this vote? If the amendments pass then all is well, but if not does that give the association power to now deny all the same improvements the majority of the owners already have and be justified?

I think it becomes more of a waiver and latches issue as well as law of equity than “abandonment” specifically. The other post from2013 I added to was essentially the same thing on a much smaller scale and many many responses related to the fact that when the HOA elects not to enforce something, and in fact approved it specifically in violation of the covenants a waiver of the covenant then exists as both the owners and the HOA have chosen to ignore and not enforce the covenant. Our fence is exactly the same as everyone else’s- the violation is twofold: a denied improvement, and being in the setbacks. The fence is otherwise compliant with the documents and the community. Additionally as I mentioned the rule change from the allowance of the fence was done verbally in a meeting where such proposed change was never noticed to the owners. The Declaration, policy, and Bylaws require notice and comment each time the rules are changed by at least 5 days with the proposed change documented in the meeting agenda as well. None of these things were done and it was a total surprise to have fences allowed one day and then not the next.

As I mentioned in my post the HOA is currently attempting to amend the covenant to specifically allow exactly what we have in place.