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.

12 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?

    • Dr. Jacquelyn L. Bray clinical M H counsel on

      What can a community with bylaws do to an individual homeowner who pays HOA fees
      And keeps her yard trimmed and neat …she is accused of feeding
      Wildlife from her birdfeeders
      Especially Canada geese which she has not done for three months they threaten her
      A hearing has been scheduled for defense .( July 20 ) what do I need do? Have only lived here 2 years .

  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 ?

  5. kevin caudle on

    My neighborhood has an HOA and restrictive covenants. The developer does not live in the neighbor hood and only owns one lot in this very large subdivision. He has allowed certain homeowners to violate specific requirements of the restrictive covenant while requiring other homeowners to meet them. Things like roof pitch, fences, and offsets from property lines. This sounds like selective enforcement that could invalidate the entire restrictive covenant.

    I have heard that if a HOA fails to enforce all of the restrictive covenants after 6 years the restrictive covenant can be deemed unenforceable.

    What input can you provide on these two issues?

  6. Shelia Malveaux on

    I have tried for over a year by email my request and attaching numerous pictures of trash that remains on the side of my neighbor’s house. Also phoned to ask my homeowners association to enforce the deed restriction by asking my neighbor to remove huge boards of wood on the side of his house as well as large glass pieces, and to-date the trash remains for well over a year. I’m afraid that my grandkids and other kids that play in the neighborhood will get injured while running and playing outside. This is such a dangerous hazardous situation. This is a nest for snakes and rats. I don’t think my paying my yearly HOA fee is fair if deeds are not being enforced or if neighbor is allowed for over a year to leave hazardous trash. They also leave their two empty trash cans out in front of street for two weeks at a time. All of this really trashed the neighborhood. I’ve lived in my house for 38 years and have made other request to HOS but never get anything resolved. Half of the time, I get no response from HOA. When I finally get a response they tell me they sent my request to board and that HOA makes the decision to enforce deed or not. HOA also replied back to me to ask if I talked to my neighbor about this.

    On another occasion, I mention to the same neighbor that I cannot receive my mail due to their car blocking my mailbox. Although they remove it, they were not happy about my request. I do not know them and do not feel comfortable speaking to them since this occurred. Besides, I feel this should be resolved by the HOA board. Otherwise, what is the point of HOA. I feel I’m paying for no service. I really cannot afford to give away money. Please advise. I’m a caregiver and can’t attend HOA meetings. If the homeowners association does not enforce deed restriction, do I have to pay the yearly fee? What are my rights?

  7. Joyce on

    I’ve lived in this subdivision for thirty years the first fifteen to twenty years they did not enforce the homeowners directions on contract. Then seven people voted themselves in as board. Now they are enforcing a crack on driveway every little thing they fine you. The fines are so huge you can’t afford to fix the problem and pay fines both.
    Forty nine people got filed against in one month. They asked me to paint my house I did. Then they said clean the roof I did then they came back and was fining me two hundred a month for crack on driveway. Every month I didn’t pay it the charged me a penalty. They have never produced a budget. The fees are so high you can’t afford to fix your property and pay fines
    I had a contract with an neighbor on a fence when we went to court the judge said the contact had to be enforced in three years or it was void. Is homeowners contracts the same.

  8. Rob on

    I’m purchasing property with a covenant. But my question is the business or association hasn’t been active as far as by state licensing since 2012 . Can they in force any of the Bi laws? Also this is a small association only 4 members . Our soon to be neighbor has a dog with no leash , against rules . There are 2 trailers parked in common areas , against rules . I don’t know anything about this group yet . So just asking ??? Maybe they have dropped all their rules but I’m assuming we will have to sign something now being a member or one of the 4 ?

  9. RIck Baker on

    I live in an HOA that has a rule no “ bench”can be placed in the mulch beds. Note: ( bench conforms to the landscaping and coordinates with the style and color of the homes) A home Owner has placed a bench in the mulch beds and was issued a violation, however another home owner has a bench in the mulch bed for over ten years. Can the HOA enforce the violation? Can the homeowner with the violation claim selective enforcement? Can the HOA now say they didn’t know about the other violation even thought it was blatantly obvious?

  10. Gil Mason on

    When a Covenant has not been enforced for 10 years or more by our HOA, can the HOA enforce that covenant on a property owner?