When Covenants Aren’t Enforced

Why do we need restrictive cove­nants? And why enforce them? What happens when the cov­enants aren’t enforced? Drive through a few older neighborhoods in suburban or semi-rural Virginia or Maryland, and you will have the obvious answers to these ques­tions. Dilapidated houses, collapsing fences, and meadow-like lawns are typical signs of a community where covenant enforcement is lacking. So the purpose of covenant enforce­ment is innately obvious: to preserve and to promote the harmonious and aesthetic im­age of a community. Appearance aside, are there other reasons for covenant enforce­ment? What happens when the board delays or suspends enforcement? This article pro­vides some answers to these questions and highlights some of the common consequenc­es of a failure to timely enforce covenants for community associations.

What is a Covenant?
Before discussing covenant enforcement, it is important to understand what a covenant is. Legally, a “covenant” is a contractual ar­rangement, but the biblical history of the term “covenant” suggests a more “sacred” kind of promise. In modern times, a restric­tive covenant is a clause in a recorded docu­ment (such as a declaration or bylaws) that limits what the owner of the land can do with the property. It’s a promise that is generally enforceable by an association or the owners individually.

When Covenant’s Aren’t Enforced
Declaration of an association charges a board of directors with an obligation to enforce the restrictive covenants either by issuing demands, assessing monetary penalties against violating owners, performing “self-help,” or by pursuing legal remedies through the courts. What happens when the board does not fulfill its obligation?

Community Appearance and Property Values
As noted above, the immediate impact of a failure to enforce architectural and mainte­nance guidelines is the neglected appearance of a community. On the surface, this may not seem like a massive deal. What many fail to realize is that properties located in poor­ly-maintained neighborhoods have much lower resale value than their counterparts located in well-maintained subdivisions. Therefore, lack of covenant enforcement not only impacts the appearance of a community but also adversely affects the property values – a very real consequence.

Legal Consequences
Practical consequences aside, failure to enforce the governing documents in a timely manner, subjects the association to defenses which could preclude enforcement both on the individual and collective cases. Such defenses include, but are not necessarily limited to the following:

  • Laches. In laymen’s terms, the defense of laches (“sitting on one’s rights”) means that simply by the passage of time, the association’s rights may be­come unenforceable. By way of an ex­ample, imagine that a property owner builds a chain link fence in contraven­tion to the association’s declaration, but the association does not initiate enforce­ment until many years later. Because of the unreasonable delay in bringing an action, the association’s claim could be seen as barred by laches.
  • Abandonment or acquiescence of vi­olation. To establish abandonment, the defendant must show that a spe­cific restrictive covenant has become unenforceable as a result of repeated, unopposed violations. For example, a homeowners’ association was found to have effectively abandoned the restric­tive covenant prohibiting construction of any building on a lot except private dwelling houses because the association had allowed construction of numerous buildings such as pool houses, gazebos, guest houses, and sheds.
  • Waiver. This defense involves inten­tional relinquishment of a known right, similar to abandonment and laches, where the association has “waived” its rights by the lack of enforcement. The party relying on the waiver defense must show that the previous conduct or violations had affected the architec­tural scheme of the area so as to ren­der the enforcement of the restriction of no substantial value to the property owners. While many association dec­larations have a provision stating that a lack of enforcement cannot be deemed as a waiver, judges do not always honor this provision if the homeowner makes a compelling case.
  • Adverse possession. In some instances, the association can lose the right of title to the portion of its common area to an encroaching property owner if the pro­ceeding for ejectment is not initiated timely. Consider this scenario: a proper­ty owner builds a fence that encroaches on the association’s common area by several feet without permission from the association. He openly maintains physical possession of the portion of the common area to the exclusion of other members of the community for 15 years (the required period in many jurisdic­tions). If the association does nothing to remove the trespasser, his possession can ripen into the owner taking legal ti­tle to the association’s common area.

In conclusion, associations need to guard their rights closely and to implement the req­uisite covenant enforcement procedures to avoid the defenses noted above. Failure to do so not only affects property values and the overall appearance of communities but may also give rise to significant defenses in indi­vidual and future cases.

By Olga Tseliak, ESQ.
Olga is an associate attorney with the law firm of Chadwick, Washington, Moriarty, Elmore & Bunn P.C. Her practice is devoted to community asso­ciation representation, including such matters of covenant interpretation and enforcement, contract law, and collections. She is an active member of WMCCAI’s Quorum Committee.

4 comments on “When Covenants Aren’t Enforced

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  1. Ben on

    I live in a neighborhood that does not allow any type of basketball goal other than in the backyard as defined the rear property line to the most rear part of the dwelling.

    We have lived in the neighborhood just short of four years and have always had a portable goal without any complaints. We have other neighbors have been in their neighborhood longer than us in the same situation. With the election of a new president we have gotten a fine structure for having our goals out.

    After talking with one neighbor about his permanent goal (which is in violation of the covenants) I found out the neighborhood developer put it in 19 years ago.

    The question I have is could I argue Laches?

  2. Richard Kliniewski on

    My issues deal with a subdivision covenants but no HOA and our problem in the neighborhood is fencing, boundary lines and abandoned cars. The covenants strictly forbids abandoned vehicles and nothing about maintaining fencing, just no higher than 6 feet in the rear and 4 feet in the front. The county has no code in reference to maintaining the fence though. The covenants go on to say no dismantling vehicles on the property and if not in running order need to be garaged or put at the rear of the property. However, who enforces this? Surely not the police, I tried the county but no luck. Is there any relief out there for homeowners who utilize their residence as their primary residence in lieu of buying and then renting out to anyone and everyone and leaving the rest of us living and paying for property that is constantly going down in value.

  3. Kay on

    Our community supposedly has covenants. We have a community association board that collects dues each year. The community association membership is voluntary and the covenants, as written, are not enforceable by the elected Board of Directors. Our covenants say home renovations/additions are supposed to be preapproved by the Board. Otherwise, our bylaws suggest a neighbor can take individual legal action against the covenant violator. My question is what to do about a Board that does not comply with its duty to approve work requests. Our Board seems to view covenants as old-fashioned. It chooses to ignore the covenant requirements in the by-laws. Is there anything a homeowner can do to force the Board to abide by bylaws? What legal recourse is there?

  4. Margreth Butterworth on

    If one of our Covenants says, we are not allowed to hang plants on our balcony railings, but the Board has not enforced this covenant for 8 years, can I consider it to be accepted by the Board ?