Invalidating/voiding covenants?

AlexP3 (Indiana)
Posts: 3

Posted:

I have lived at my property for 7 years. I just found out yesterday I live in a 3 house subdivision and are under a set of covenants. One other neighbor had never heard of this either and they’ve been here 15 years. I was given a violation notice by the other neighbor about my motorhome being parked in my driveway being a violation. The covenants are extremely vague and were originally written in the 80’s. My main question is if the covenants have never been enforced, can it be considered null and void? I know of 3 specific incidents that were/are direct violations dating back 30 years.

Secondly, one house has 2 lots and the other 2 houses have 1 lot. The covenant specifies lots in its wording. Would the owner of 2 lots get 2 votes? The covenant never mentions this.

There are no set of penalties listed in the covenants. Can I just ignore his letters and request?

What would the process be to remove my property from said Covenants? It states that a majority vote can change the covenants but if 2 of us want out and the other has 2 votes will we always be at a stalemate? These covenants are EXTREMELY vague and provide 0 guidance. The most specific part is actually about no camping vehicles allowed.

WendyM5 (North Carolina)
Posts: 1,522

Posted:

I had a house in a deed restricted community that the builder went bankrupt trying to make. Luckily there was never an HOA formed, but there were deed restrictions.
someone didnt like the workshop/shed I made and paid a lawyer to write a letter to me. I ignored it, that was 7 years ago. Like you there was no punishment provisions. However this was in a rurual area where lots were 2+ acreas each.

The closer neighbors are the more problems they cause in my experience. I'd ignore it and see what their next move is. Hopefully there is no city code enforcement, because they can be agressive and have major powers to fine. I'd research that, but dont' be naive and give them your name and address for them to follow up with, just make an anonymous request.

vis ta vie

TimB4 (Tennessee)
Posts: 21,059

Posted:

Not enforcing is not the same as invalidating.
One would need a court to invalidate portions of restrictive covenants.

As for voting, it's typically one vote per lot.
The owner that has two lots would have two votes.

TerriS6 (California)
Posts: 3,284

Posted:

In California, 1. Only a board can discipline, not an individual, 2. Covenants not enforced are unenforceable, 3. There is a statute of limitations on enforcement actions - here it's 4 years. 4. Even if your neighbor had 2 votes as a member, he would not have 2 votes on a board of directors.

I would say your neighbor is dreaming.

TerriS6 (California)
Posts: 3,284

Posted:

Correction, statute of limitations is 5 yrs

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 07/08/2023 5:55 AM
In California ... 2. Covenants not enforced are unenforceable

False.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By AlexP3 on 07/07/2023 11:25 PM
I have lived at my property for 7 years. I just found out yesterday I live in a 3 house subdivision and are under a set of covenants. One other neighbor had never heard of this either and they’ve been here 15 years. I was given a violation notice by the other neighbor about my motorhome being parked in my driveway being a violation. The covenants are extremely vague and were originally written in the 80’s. My main question is if the covenants have never been enforced, can it be considered null and void? I know of 3 specific incidents that were/are direct violations dating back 30 years.

If Covenant X has never been enforced; multiple owners are violating Covenant X; the violation of Covenant X is obvious to anyone driving around the 3-house subdivision; and the violation has existed for a long time, then a court might rule Covenant X (and only Covenant X) not enforceable. Just in case you are checking Indiana case law, the courts call the applicable principles here either "abandonment"; "waiver"; or "acquiescence."

Quote:

Posted By AlexP3 on 07/07/2023 11:25 PM
Secondly, one house has 2 lots and the other 2 houses have 1 lot. The covenant specifies lots in its wording. Would the owner of 2 lots get 2 votes? The covenant never mentions this.

AlexP3, here's an introduction to the structure of HOAs and covenants:

Nearly all land with housing built on it in the last 40 years has covenants that apply to it.

Not all land with housing built on it in the last 40 years has a homeowners' association. To identify whether a homeowners association is associated with these home lots, read the document with the covenants on it closely. If the document makes no reference to a homeowners association or a corporation, then chances are there is neither. If there is no association or corporation, then enforcement of the covenants is by way of one owner suing another owner in court.

Quote:

Posted By AlexP3 on 07/07/2023 11:25 PM
What would the process be to remove my property from said Covenants? It states that a majority vote can change the covenants but if 2 of us want out and the other has 2 votes will we always be at a stalemate?

Yes, it will be a stalemate, and your lot stays subject to the covenants.

Also the chances are fair that a court would say // all // owners subject to the covenants must consent to any drastic changes. Amendments must meet a higher standard than the original covenants. If you do not understand, ask me to explain.

Quote:

Posted By AlexP3 on 07/07/2023 11:25 PM
These covenants are EXTREMELY vague and provide 0 guidance. The most specific part is actually about no camping vehicles allowed.

The courts often point to the vagueness of a covenant as being so problematic that the covenant is not enforceable. Ambiguity in a covenant translates to interpreting the covenant // against // whoever wrote the covenant, and in favor of free enjoyment of land.

If you quote exactly what the covenant in question states, and then describe the particulars of the situation at your lot (trying to be as unbiased as possible), I can offer my opinion on whether your neighbor is being ridiculous or not and you would prevail in court, if push came to shove. Also I might be able to suggest a response to the neighbor.

Please answer all questions readers here put to you. Giving advice over the net is not easy. The more accurate you are, the better.

TerriS6 (California)
Posts: 3,284

Posted:

Not false, it's true. Read the case law.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 07/08/2023 9:49 AM
Not false, it's true. Read the case law.

It's highly dependent on specific circumstances. Your generalization is flatly wrong.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Many CC&Rs also give individual owners the right to enforce the covenants via lawsuit. This right doesn't just belong to the boards.

AlexP3 (Indiana)
Posts: 3

Posted:

Thank you everyone for the replies. A few points I’ll make about all of this.

1. The covenant does specifically state no camping vehicles. I’m not really contending that specifically but nothing has ever been enforced. Literally one of the clauses is “you may not do anything that may cause annoyance or nuisance to your neighbor”. Like ok, your presence annoys me 😂

2. This actually isn’t a subdivision in what you would think. This is just 4 1-2 acre lots on a county road in the middle of houses that are not a part of anything. There’s technically no entrance or exit to the “subdivision”.

3. The CC&R states it’s the public and lot owners to enforce. There’s no HOA or Board.

4. This neighbor is doing this as a power trip. I park it at my house 3-4 months a year to work on it and unload and load it. He didn’t say anything last year and says he’s worried about his property value. But says he won’t go to the other neighbors who aren’t in the covenant and ask them to move their 2 campers. I said just neighborly do it and he changed the subject. Also, we’re not talking a junker motorhome either. It’s a 40ft $100k+ motorhome.

5. If I wanted to annex my property from the covenant can I do it with a vote of us 3 or will I need to go through a lawyer and the courts? And is this even possible. Honestly if this was disclosed to us when we bought the house we probably wouldn’t have purchased it.

Keep the questions and comments coming folks! I’m here to learn as much as possible about this.

TerriS6 (California)
Posts: 3,284

Posted:

Everything I wrote was true. Are you trying to contradict every comment I make because I don't worship lawyers?

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 07/08/2023 11:03 AM
Everything I wrote was true.

What you posted is based on an incorrect understanding of case law and the law on statutes of limitations. It is flatly false that "covenants that are not enforced are unenforceable."

LizD3 (California)
Posts: 200

Posted:

Quote:

Posted By TerriS6 on 07/08/2023 5:55 AM
2. Covenants not enforced are unenforceable

Agreed. Two issues:
1. If a covenant is not enforced, the Association has set a precedent, making it tricky for them to suddenly justify enforcement
2. It is a tremendous problem if the Association cherry picks enforcement (enforce it with one neighbor, but not another)

In the real world, Terri is correct.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By LizD3 on 07/08/2023 12:24 PM

Posted By TerriS6 on 07/08/2023 5:55 AM
2. Covenants not enforced are unenforceable

Agreed. Two issues:
1. If a covenant is not enforced, the Association has set a precedent, making it tricky for them to suddenly justify enforcement

What do you mean by "not enforced"? Suppose a board learned of a covenant violation 1.5 years ago. Is it allowed to enforce the violation? In California, is a court more or less likely to agree that the Board has the right to enforce a violation that it learned about 1.5 years ago?

I know what the statute of limitation says in California. Can you cite it, word for word? Or can you at least show that you checked what the D-S site says about statutes of limitations as they pertain to covenant enforcement?

Quote:

Posted By LizD3 on 07/08/2023 12:24 PM
2. It is a tremendous problem if the Association cherry picks enforcement (enforce it with one neighbor, but not another)

Your use of the word "if" changes the topic under discussion.

CathyA3 (Ohio)
Posts: 6,299

Posted:

My CC&Rs contain a statement that failure to enforce any of the provisions in the CC&Rs does not preclude enforcement in the future, and failure to enforce one provision does not make the rest of the provisions unenforceable.

No two boards are going to have the same ideas about how to handle these issues. If one lax board means that the board can no longer enforce in the future, why have covenants at all? It makes no sense.

In addition, many of the HOA/COA CC&Rs in my area also give homeowners the right to enforce the terms of the CC&Rs. They do not limit this right; for example, is a newer homeowner SOL if previous owners did not enforce a particular provision? Again, it makes no sense.

Citing case law is always tricky since these cases likely depended heavily on the particulars of an individual situation and should not be viewed as a general statement unless you know exactly what those particulars involved.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By AlexP3 on 07/08/2023 10:46 AM

1. The covenant does specifically state no camping vehicles.

On the one hand, no HOA is involved. On the other hand covenants, all by themselves with no HOA, are legally powerful.

Do understand that the literal meaning of "covenant" is to bind one party to another. The biblical meaning is also the legal meaning: A covenant is an agreement. Covenants have existed for some 150 years. Case law of course goes back about that far as well.

Covenants that run with the land are formal, legal agreements concerning the use of land. The courts view covenants as "contractual terms."

When John Doe buys a home lot with a deed that speaks of covenants and/or restrictions on this home lot and certain lots around it, the courts say that Doe and all his neighbors formally, legally agreed to abide by these covenants and/or restrictions. The courts say the covenants were public record at the county clerk's, or were disclosed to you by the seller, or both, so you went into the purchase with eyes wide open.

To be successful in a lawsuit against you, your neighbor is not required to enforce this covenant against all other neighbors. (If a HOA were involved, this would be different.) The facts are:

-- When you bought the lot you agreed you would not have a camping vehicle on your lot.

-- You have what many, but not all, agree is a camping vehicle.

-- The fact is that no camping vehicles are allowed.

Other facts may be relevant. Like how old the covenants are and the popularity of camping vehicles, especially during a pandemic.

Your owner has made what is known as a "demand" on you. If he really wants your motor home gone, he will lawyer up. The demands will escalate in tone. Eventually the demands will say, in so many words, "Get rid of the motor home, or my client will be taking you to court."

What are your options?

1.
Do nothing for awhile, letting the demands escalate. Force the neighbor to lawyer up. The neighbor is taking a risk he may have to spend a lot of money on the attorney and not get what he wants. Then hire your own lawyer to see what your options are. Count on it, a good attorney will come up with some reasons to rebut the claim that the covenant is not abandoned.

2.
Put the motor home in storage.

Quote:

Posted By AlexP3 on 07/08/2023 10:46 AM
5. If I wanted to annex my property from the covenant can I do it with a vote of us 3 or will I need to go through a lawyer and the courts?

You will need an attorney. If someone challenges the amendment to the covenants, then this is when you might land in court. Why would someone challenge such an amendment? The someone would be saying, "Hey, you bought this lot knowing full well that no camping vehicles are allowed. The covenants "bound" us in this agreement that no camping vehicles are allowed. The covenants are a contract between you, me and our neighbors. One cannot change a contract in a drastic way without all parties agreeing.

Quote:

Posted By AlexP3 on 07/08/2023 10:46 AM
Honestly if this was disclosed to us when we bought the house we probably wouldn’t have purchased it.

The courts say it was disclosed to you.

Post back if you want to know what the sellers' disclosure requirements are in Indiana, with regard to covenants. Please name the person to whom you are responding.

TerriS6 (California)
Posts: 3,284

Posted:

ElleN, when I post here where most everyone is in another state, I can only suggest something that works in California because everyone' governing documents are different and states' laws are different. That is why I don't go into detail unless it's someone in California.

If a board has not been enforcing some restriction, it is true they will not be able to start enforcing it later because the board must follow its own procedures. For example, our Declaration provides for an architectural committee but there has never been one so they wouldn't be able to start regulating architecture now. There is plenty of case law on this.

CathyA3 (Ohio)
Posts: 6,299

Posted:

My CC&Rs contain a statement that failure to enforce any of the provisions in the CC&Rs does not preclude enforcement in the future, and failure to enforce one provision does not make the rest of the provisions unenforceable.

No two boards are going to have the same ideas about how to handle these issues. If one lax board means that the board can no longer enforce in the future, why have covenants at all? It makes no sense.

In addition, many of the HOA/COA CC&Rs in my area also give homeowners the right to enforce the terms of the CC&Rs. They do not limit this right; for example, is a newer homeowner SOL if previous owners did not enforce a particular provision? Again, it makes no sense.

Citing case law is always tricky since these cases likely depended heavily on the particulars of an individual situation and should not be viewed as a general statement unless you know exactly what those particulars involved.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By ElleN on 07/08/2023 1:07 PM

Posted By AlexP3 on 07/08/2023 10:46 AM

1. The covenant does specifically state no camping vehicles.

On the one hand, no HOA is involved. On the other hand covenants, all by themselves with no HOA, are legally powerful.

Do understand that the literal meaning of "covenant" is to bind one party to another. The biblical meaning is also the legal meaning: A covenant is an agreement. Covenants have existed for some 150 years. Case law of course goes back about that far as well.

Covenants that run with the land are formal, legal agreements concerning the use of land. The courts view covenants as "contractual terms."

When John Doe buys a home lot with a deed that speaks of covenants and/or restrictions on this home lot and certain lots around it, the courts say that Doe and all his neighbors formally, legally agreed to abide by these covenants and/or restrictions. The courts say the covenants were public record at the county clerk's, or were disclosed to you by the seller, or both, so you went into the purchase with eyes wide open.

To be successful in a lawsuit against you, your neighbor is not required to enforce this covenant against all other neighbors. (If a HOA were involved, this would be different.) The facts are:

-- When you bought the lot you agreed you would not have a camping vehicle on your lot.

-- You have what many, but not all, agree is a camping vehicle.

-- The fact is that no camping vehicles are allowed.

Other facts may be relevant. Like how old the covenants are and the popularity of camping vehicles, especially during a pandemic.

Your owner has made what is known as a "demand" on you. If he really wants your motor home gone, he will lawyer up. The demands will escalate in tone. Eventually the demands will say, in so many words, "Get rid of the motor home, or my client will be taking you to court."

What are your options?

1.
Do nothing for awhile, letting the demands escalate. Force the neighbor to lawyer up. The neighbor is taking a risk he may have to spend a lot of money on the attorney and not get what he wants. Then hire your own lawyer to see what your options are. Count on it, a good attorney will come up with some reasons to rebut the claim that the covenant is not abandoned.

2.
Put the motor home in storage.

Quote:

Posted By AlexP3 on 07/08/2023 10:46 AM
5. If I wanted to annex my property from the covenant can I do it with a vote of us 3 or will I need to go through a lawyer and the courts?

You will need an attorney. If someone challenges the amendment to the covenants, then this is when you might land in court. Why would someone challenge such an amendment? The someone would be saying, "Hey, you bought this lot knowing full well that no camping vehicles are allowed. The covenants "bound" us in this agreement that no camping vehicles are allowed. The covenants are a contract between you, me and our neighbors. One cannot change a contract in a drastic way without all parties agreeing.

Quote:

Posted By AlexP3 on 07/08/2023 10:46 AM
Honestly if this was disclosed to us when we bought the house we probably wouldn’t have purchased it.

The courts say it was disclosed to you.

Post back if you want to know what the sellers' disclosure requirements are in Indiana, with regard to covenants. Please name the person to whom you are responding.

Sound advice.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 07/08/2023 1:08 PM
If a board has not been enforcing some restriction, it is true they will not be able to start enforcing it later because the board must follow its own procedures.

Sometimes this is true. Sometimes it is false.

Which it is depends on the specifics of the case.

The OP has indicated no HOA is present, so no board is present. This thread is about the enforcement of covenants, by one neighbor against another.

If you want to discuss what rights a board has when it comes to enforcement, please start another thread.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By CathyA3 on 07/08/2023 1:12 PM
My CC&Rs contain a statement that failure to enforce any of the provisions in the CC&Rs does not preclude enforcement in the future, and failure to enforce one provision does not make the rest of the provisions unenforceable.

No two boards are going to have the same ideas about how to handle these issues. If one lax board means that the board can no longer enforce in the future, why have covenants at all? It makes no sense.

In addition, many of the HOA/COA CC&Rs in my area also give homeowners the right to enforce the terms of the CC&Rs. They do not limit this right; for example, is a newer homeowner SOL if previous owners did not enforce a particular provision? Again, it makes no sense.

Citing case law is always tricky since these cases likely depended heavily on the particulars of an individual situation and should not be viewed as a general statement unless you know exactly what those particulars involved.

I agree.

ElleN (Idaho)
Posts: 4,420

Posted:

AlexP3, Indiana law going back at least seven years requires that sellers disclose, among other things, anything the Indiana Real Estate Commission requires. It appears to me the Commission has long required that sellers disclose the existence of covenants. See for example: https://forms.in.gov/Download.aspx?id=5236 ("Seller's Residential Real Estate Sales Disclosure State Form 46234")

Check your files for the seller's disclosure form provided to you.

TerriS6 (California)
Posts: 3,284

Posted:

Cathy, I had read the case law. I mentioned it in case there could be a basis for similar arguments in the author's state.

MikeB23 (Louisiana)
Posts: 109

Posted:

All the advice from states other than your own are nothing but speculation.

LetA (Nevada)
Posts: 2,679

Posted:

Not enforcing any covenant does not invalidate them. Example: Everyone puts their trashcans where they are supposed to. Then all the sudden People put the trash cans in front of their garage door,
by their front door, leaves them out 2,3,5 days past trash collection day. It takes time for the board to enforce. There needs to be a complaint, perhaps a hearing a fine. Just because an HOA
goes years without having to enforce a particular covenant does not invalidate them.

AlexP3 (Indiana)
Posts: 3

Posted:

LetA, I understand what you’re saying. But what if the covenant has a history of not being enforced on dwelling size, commercial use and types of vehicles allowed. We’re talking people living in a garage, a business for say 10+ years (covenant states no commercial use) and violation of type of vehicle allowed in subdivision for 6+ years?

TerriS6 (California)
Posts: 3,284

Posted:

https://findhoalaw.com/failure-to-enforce/

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By TerriS6 on 07/09/2023 6:02 AM
https://findhoalaw.com/failure-to-enforce/

That is in CA. The OP is in IN. Might could be a big difference.

TerriS6 (California)
Posts: 3,284

Posted:

Of course every state is different but I find many states have the same legal principles and I post it just to share the idea in case the same legal principles exist.

TerriS6 (California)
Posts: 3,284

Posted:

"No two boards are going to have the same ideas about how to handle these issues. If one lax board means that the board can no longer enforce in the future, why have covenants at all? It makes no sense. "

A lax board and an enforcing board both represent the association not the individuals who sit on it, so the latter board could very well be prevented from enforcing based on a prior board's inaction.

LizD3 (California)
Posts: 200

Posted:

Quote:

Posted By ElleN on 07/08/2023 12:38 PM

Posted By LizD3 on 07/08/2023 12:24 PM

Posted By TerriS6 on 07/08/2023 5:55 AM
2. Covenants not enforced are unenforceable

I know what the statute of limitation says in California. Can you cite it, word for word? Or can you at least show that you checked what the D-S site says about statutes of limitations as they pertain to covenant enforcement?

Not enforced means not enforced. And cherry picking of enforcement is precisely on-topic, as the topic is enforcement.

Are you truly struggling to understand this? Truly?

And is it truly necessary to be so caustic? Truly? It's a shame, really, because I suspect underneath that bruised ego there is someone who could be a tremendous help to those us trying to learn.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By LizD3 on 07/09/2023 12:16 PM

2. Covenants not enforced are unenforceable

Not enforced means not enforced.

Suppose a board learned of a covenant violation 1.5 years ago. For those 1.5 years, it did nothing. Today the HOA Board wants to enforce the covenant. Is the HOA in its legal rights to enforce the violation, starting today?