Is there a NC Statute similar to this one, regarding violations?

As a lay person I read it to mean if a violation was not addressed within 5 years it cannot be addressed but this does not mean similar violations cannot be addressed.

RobinL7, I looked at North Carolina case law using this search:

"laches" "covenants" "enforce" site:https://law.justia.com/cases/north-carolina/

A number of NC appeals court decisions have occurred where owners tried to convince a court that laches applied and the NC HOA should be estopped from enforcing its covenants. I see no reference to any NC state statute on this topic. The most recent appeals court decision I saw was from 2016 as follows: https://cases.justia.com/north-carolina/court-of-appeals/2016-15-1301.pdf?ts=1470140145

It's rare that a court anywhere will take the position that a covenant has been been either abandoned, waived, or 'amended by acquiescence.' For over 100 years the courts have said covenants (where unamended) are contractual terms, and, the courts say in so many words, god help the owner who is not complying with them. This is so even if years have passed since the HOA said anything about a violation.

Thanks Everyone,

Ellen, your responses were particularly helpful. Right, I can find no NC statutory reference on this concern specifically too. I'll check out your lead on latches and waivers, and I am just starting to understand the nuances of these terms. As for my issue see the reference below from a lawfirm in Charlote, this is the closest I am getting to the answer I need. The story: basically, I do not think that covenant (CC&R) violations that are 15 - 20 years old can be used by a HOA Board as a reason to NOT to enforce a similar NEW Covenant violation, unless the covenant directive is found to be abandoned by the community overall. To further clarify, a Board is saying that they can't address a new violation because they would need to address a number of other violations "retroactively" that were recently discovered by using advanced GIS County mapping. This "investigation" of older violations only occurred after a complaint about a new violation was received.

Thanks to all for your comments! Very helpful. Here is the reference I mentioned earlier.

Everything You Need to Know About Unenforceable HOA Rules (fsresidential.com)

Enforced selectively

When an HOA enforces rules inconsistently, it may be held liable for violating the Fair Housing Act (FHA). For instance, if an HOA fines a certain protected class but not others, they may be charged with discrimination.
Inconsistent enforcement also applies to rules that are in force but not applied. For example, if an HOA has rules against colored fences but has not enforced the rule in over 10 years, they may have a difficult time penalizing those who have painted their fences within those 10 years.

§ 16.07.06. Statute of Limitations and Laches from the book CIC in NC 2nd edition. My take is 6 years:

Laches is an equitable statute of limitations, which is a common law theory not
capable of being reduced to an exact period of time. In North Carolina, laches may be a defense
where (1) a delay of time has resulted in some change in the condition of the property or in
the relations of the parties; (2) the delay is shown to be unreasonable and has worked to the
disadvantage, injury, or prejudice of the person seeking to invoke the doctrine of laches; and (3)
the claimant knew of the existence of the grounds for the claim.
The statute of limitations, on the
other hand, is a specific period of time within which an action must be brought, and is controlled
by statute.
Where defendants have not made a showing of the above elements, then a court
should not dismiss a case based on laches. In Harris & Gurganus, Inc. v. Williams, 37 N.C. App.
585, 246 S.E.2d 791 (1978), a seller of land filed suit against a purchaser for specific performance
of a restrictive covenant referred to in the deed, which required the reconveyance of the land if it
was not built on in two years. The seller waited three years after he sold the land to enforce the
covenant and the trial court determined that the seller was guilty of laches in not bringing the
action sooner. On appeal, the Court of Appeals disagreed, holding that there was no showing of
inequity affecting the purchaser, and no showing that a lapse in time resulted in some change or
condition to the property that would make it unjust to permit prosecution of the claim.
118
More
recently, in Irby v. Freese, 696 S.E.2d 889 (N.C. App. 2010), review denied, 364 N.C. 619, 705
S.E.2d 371 (2010), owners brought an action against lot owners seeking removal of an addition
to a home that violated a setback restriction. The defendants started site work in December 2007;
however, the lawsuit was not commenced until February 2008.
119
The trial court dismissed the
plaintiff’s complaint and the plaintiff appealed. The Court of Appeals reversed the trial court’s
ruling that the plaintiff’s delay in bringing the action was unreasonable.
120
The Court of Appeals
noted that the plaintiffs “inquired with the Charlotte City Planning & Zoning Office, the Building
Inspections Department, the HOA and their attorney and filed their complaint, all in a matter of
two months.”
121
Under these facts, the plaintiff’s action was not barred by laches.

What statute of limitations governs actions brought by an association against an
owner has been confused over the years by North Carolina’s intermediate appellate court, and even
by the North Carolina Supreme Court. In Williams, for example, the Court of Appeals held that
an action to enforce a restrictive covenant was a contract under seal and was, therefore, governed
by the 10-year statute of limitations.

One year later, the Court of Appeals held that a restrictive
covenant “is a servitude, commonly referred to as a negative easement … and an easement is an
incorporeal hereditament” governed by a six-year statute of limitations under N.C.G.S. § 1-50(a)
(3).

In 1995, the Supreme Court held that a declaration containing a condominium developer’s
covenant to pay maintenance assessments was an instrument under seal subject to a 10-year statute
of limitations under N.C.G.S. § 1-47(2).
124
A month later, the Court of Appeals noted that a six-year
statute of limitations applied to actions to enforce restrictive covenants.
In the Irby case in 2010,
the Court of Appeals indicated that the applicable statute of limitations was six years.

Since most declarations are indeed “sealed” instruments, it would appear that
the outer statute of limitations for enforcement of declarations under seal would be 10 years
under Williams and Dunes South, at least with respect to claims against a developer signing the
instrument. With respect to non-sealed declarations or against owners that did not affix their seal
to a declaration, an action to enforce the declaration would be governed by the shorter, six-year
statute of limitations under Hawthorne, Sea Gate and Irby. As for liens filed under the PCA or the
Condominium Act, both statutes expressly state that a lien for unpaid assessments is extinguished
unless proceedings to enforce the lien are instituted within three years after the docketing of the
claim of lien in the office of the clerk of superior court.
127
While a lien for fines may be extinguished
after three years, a claim for injunctive relief to enforce the covenants may not be barred under
other applicable statute of limitations.

from:
https://www.legalmatch.com/law-library/article/negative-easements.html

What Is A Negative Easement? How Is It Associated With Restrictive Covenants?
As previously mentioned, a negative easement restricts the property’s owners use of their own property. Although there have been multiple variations of easements over time, negative and affirmative easements are generally opposites.

While an affirmative easement creates a right to use or cross over another person’s real property, a negative easement creates an obligation or a restriction on the real property owner. This restriction is to not use their own property in a particular way that would otherwise be legal to do so.

Negative easements are treated as restrictive covenants expressly recorded in the property’s deed. A restrictive covenant is an agreement between a property owner and others that places limitations on how the property is to be used. In general, the covenant is drafted in the deed to the land as previously mentioned, or is otherwise alluded to in the deed. Additionally, the covenant is on public record at a county recorder’s office or city government; a record of this covenant can also be retained by the homeowner’s association when applicable.

Restrictive covenants are intended to retain the property values of the homes in the neighborhood. You should be informed of any restrictive covenants that may apply to you or your property, especially as they may disturb your enjoyment of that property. Being aware of any restrictive covenants is an especially important factor when determining whether to purchase property.

Some of the most common examples of restrictive covenants include, but may not be limited to:

Having a home-based business;
Restrictions associated with building on specific parts of your property;
Keeping the property in a specified condition;
Conforming to the color and style of the other properties in the development;
Parking on the property;
Restrictions regarding the breed of pet and number of pets allowed on the property; and
Restrictions associated with the height of fencing, as well as the installation of pools and possession of a trampoline.

Again thanks so much Wendy and Ellen. (Got it about the negative easement thing! Interesting). Also, I read this too Ellen, that sometimes the clock of statute of limitations may start ticking when the association discovers the violation.

In our situation, the older violations were discovered by using newer technology, technology that wasn't as advanced or available 15 - 20 years ago (so I think these violations would be legally inadmissible now to make a case against addressing a current violation). Also there have been no complaints by the membership regarding these violations, they are not obvious. The recent violation is obvious and there has been a complaint, however it only affects a few people (which I think is part of the problem). The Board is concerned that if they address this violation, they will have to require corrective measures for all the others. I don't think this is a legally sound position nor a valid reason to not follow through on the current violation.

Also, I don't believe a judge would have found that this specific CC&R's directive had been "abandoned" due to past violations, however, I think a judge might NOW. This recent decision is a "waiver", and using the Board's reasoning, essentially, "waivers" were granted for to all the past violations too (which wasn't necessary, statutorily). And certainly, if this decision stands, other residents should not be required to comply with a restriction the Board has not enforced previously (selective enforcement). This could affect our property values actually in the long run and is particularly contrary to the overall theme of our declaration. I am in an awkward situation, I was not the complainant, but I know a lot about it (obviously), and most in our community do not. I am considering asking the Board to revisit the violation and consider it "on its own" without dredging up old prior violations. If they are not in agreement with my suggestion, I'll ask them to consult an attorney. I hope they do, maybe I'm wrong, but we should find out.

"The Board is turning a blind eye to Owner Y's violation of Covenant 389". Yes, they are (actually with eyes wide open) and true they certainly have the right to not enforce certain covenants. And, thanks I do understand your point about the legal standing of "selective enforcement"...maybe this is not accurate terminology for what is happening here. Also, right too, our declaration allows for owner enforcement.

Also, even more importantly, you are further correct, in that I need to be very careful here, owners Y are not aware of the waiver granted to them. New owners X are required to comply with the same restrictions owner X is in violation of (which is fine...), but both owners are unaware of any of this I believe.

I think the statute of limitations is important too, that you and Wendy helped me with....I don't think it's appropriate for the Board to use older violations (that weren't as serious frankly) to not enforce a more serious (abet one that only affects a few people) violation. Probably better would have been them owning up and just admitting they didn't want to deal with it because only a few people were being affected. But now, I do think there is an abandonment issue here, if numerous older violations, that have just been recently discovered, are being used to support waiving a new one (that is similar but more serious), then I think it's possible the new owners X really shouldn't be required to comply either...I think we need some legal advice. It this concept is really valid, it could result in this particular restriction becoming unenforceable, and it's a pretty important restriction IMO.

Exactly. It's not that the Board decided this specific restriction was abandoned, it just IS.

But they forgot that 5 years ago, we recognized this problem and instituted rules that we hoped would curtail future similar violations. So, you get my disappointment, I am sure. Now, that this new violation has been allowed, we either give up or try to turn this around again... It's tricky to include all the owners in discussion as we did a number of years ago, which is the right thing to do, but since this entire situation has been addressed in closed session I am tring to find a path forward...

As for the "test" (thanks) here are my answers to the questions for our community.

For what it is worth, the general case law standard for when a covenant is abandoned is roughly this:

-- Driving around the neighborhood would result in no one thinking a covenant prohibiting xyz existed. Yes, (overall) we live in a rural community, violations are not often obvious.

-- Many homes are in violation of the specific covenant. Yes - but most of the violations are 20 + years old, and again not obvious. However, as the community grows new (similar) violations are becoming more intrusive.

-- The violation has existed for many years. No, "The specific violation in question is new".

Thanks again Ellen, I have a start for discussion with the Board now. Your help is much appreciated.

Hi Robin, I meant that the many other violations have existed for many years.

Academically speaking, since the violation is not obvious from just driving around the neighborhood, then I tend to think that abandonment and waiver could not be argued successfully.

From a bit of case law, the more rural a community is, the more generous the courts might be towards the violators? As in one of the chicken disputes several years ago. My buds and I all thought the chickens were going to lose, based on what seemed to be a clear, covenant prohibition of "poultry" on the property. The chickens won, squeaking in under the bar (the appeals court indicated) for "pets" and the fact that this was a rural HOA, with each lot being at least an acre, IIRC. I understand each side in the latter case paid around $100,000 in attorney fees.

Anyway, easy for me to chat from the cheap seats. Good luck.

that's what's quoted above from same book