Published: December 16, 2015
— Kyle Jensen is a litigation attorney with the law firm Clark, Campbell, Lancaster & Munson,
Q: Is it important for homeowners associations to consistently enforce restrictive covenants and association bylaws and rules, especially when such covenants or rules are no longer desirable?
A: Homeowners associations and other “deed restricted” developments are communities with restrictive covenants and rules regarding use of property within the community. Generally, within these communities, an association is created with authority to enforce these restrictive covenants. If you live in a deed-restricted community, and you would like to build a fence around your house, but the restrictive covenants prohibit construction of a fence, then even though it is your property, you cannot, excluding certain exceptions, construct a fence.
However, what happens if the association fails or selectively enforces its rules? The association consists of the property owners within the community, and its board consists of elected owners. Generally, these individuals are not attorneys with expansive knowledge of association law, or even their own declaration of covenants. Further, as time goes on, communities change, and restrictive covenants or rules that were desirable when the community was formed are no longer wanted or needed. As such, a community’s restrictive covenants, whether intentionally or otherwise, are oftentimes not enforced, or if they are, only sporadically and selectively.
While it may be tempting to ignore certain restrictive covenants, or provide exceptions to the same, associations should resist such actions. If an association fails to enforce a restrictive covenant, or if it enforces it only against certain owners, such restrictive covenant might become unenforceable. Therefore, if an association permits one property owner to build a cosmetically appealing fence in violation of the restrictive covenants, it may be prohibited from preventing another homeowner from constructing a fence that is much less appealing.
If there are certain restrictive covenants or rules that the association and its property owners no longer want to enforce, or at least want to relax restrictions, the better avenue, as opposed to simply ignoring these rules, is to amend the community’s covenants to reflect the desires of its owners. This will allow the association to continue to enforce its rules, while amending the rules to better conform to expectations and desires of property owners. Therefore, if a community desires to allow fences, but wants to limit types and dimensions of such fences, the association should amend its restrictive covenants to allow fences, and specifically provide for the types and dimensions of fences that are permitted.