Defining Expired Covenants

Several things come to mind.

1. Laws and time frames will vary between states.


2. You are unlikely to find such a law because covenants can actually be enforced by any party who would stand to lose. Thus HOAs are notthe only source of enforcement.


3. You will probably have better luck in a case where a violation has been known for a period of time with no action then to show that lack of action in one case prevents action in another.

The trick is that what is written and what is enforceable are not always the same thing. And to be honest, I don't believe there is a clear president either way concerning where things lie. In many cases a judge will allow a new board to enforce against something well established. In other cases they will prevent going after people who have been in violation for some period of time. And at least in a few cases a judge has ruled that there are so many violations that the covenant is unenforceable against anyone.

Then again, you would also have the fight against each and every covenant because they are generally severable. Meaning that just because one item gets struck down doesn't mean all others are invalidated.

I would concur with most of what Robert has said. But you could find some lawyer who will present most anything in court. Some people are just hungry. All the same, please understand that lawyers are expensive. And even in the best of circumstances you could look at several thousand dollars to prove that a given covenant is no longer enforceable. And if you have an HOA it could well be that they have the money and are not afraid to spend it. The little kicker is that if they end up with a court case and you lose, they pass the defense cost to you the member. This is in the rules of the association.

I am not saying to not do it. Just something to think about. I would read all the documents through a number of times before considering getting a lawyer. No point in spending close to a thousand dollars for a lawyer to read only to tell you how far the deck is stacked against you. (And it most likely is because HOA rules are normally written that way.)

Don't get me wrong, sometimes owners do win against their HOAs. But I think far more lose. And many find that their course of action is to file suit and run to the media to portray the mean, nasty HOA.

Patricia,

You may be thinking of the legal term "laches" which is more or less like a statute of limitations. Laches is "a doctrine permitting dismissal of a suit because a plaintiff's unreasonable delay in asserting a right or privilege has been detrimental to the defendant's ability to make a defense." Sometimes this doctrine is used as a defense in a court case when the BOD does not enforce a covenant for a long period of time.

Robert mentioned the fact that covenants "run with the land". What this means is that the CCRs are restricted covenants that are transferred to successor owners -- in other words they do NOT go away; unless the CCRs are amended to terminate them. However, that does not mean the CCR restrictions are not enforceable because the board has failed to enforce them w/i a reasonable period of time. That is only for a court of law to determine. And, if a court finds that IS the case the CCRs will still exist, but the particular CCR that the lawsuit was about may not be able to be enforced again. In fact my CCRs do state that if a particular provision is found to be invalid it shall not affect the validity or enforceablility of any other provision of the CCRs.

I've not heard of any state laws which say a covenant is unenforceable if it has not been enforced w/i a certain period of time.

Thank you all for your responses. I thought you might be interested in the reason for the question. Our BOD created an Ad Hoc Committee to review our current DCC&Rs and make recommendations for amending it by updating and revising them to make them clearer, to delete references to the Developer since our community has been fully developed, to include any new policies that have been adopted by the BOD, and to make sure we are in compliance with our General Statutes (Planned Community Act) and our town ordinances. One of our recommendations was to delete a restriction on the color and size of blinds that can be used by townhouses. Our committee felt that since the detached homes don't have any restriction on window treatments, it made sense to treat the townhouses the same way. Also, this is a restriction that has never been enforced. I thought I had read somewhere that if a restriction is not enforced for a certain period of time, it expires. Incidentally, we know that getting 67% of the homeowners to approve the new amendment will be extremely difficult if not impossible, but we learned a heck of a lot working on this. We all agree that despite the hours it has taken to work on this task, it was well worth it.

Several things come to mind. One, I would allow each change to be its own line item and thus raise the chances of items passing. But I would also use to the advantage the lack of enforcement. Unless there is some huge groundswell asking for enforcement, then it would appear that people like the status quo. And the best way to protect themselves is to amend the covenants.

You should appeal to people who have no reason to vote no to vote yes. For instance the detached homes have no reason to vote against a change that only affects town homes. And then point out to each person who has a non-standard blind that they should vote yes to protect themselves from some person with an ax to grind. (One person could force compliance on the board or not.)

The other thing is to really push for the proxy votes. I would knock on people's door and ask for a directed proxy. And tell them that undirected proxies will be used to vote yes for all items.

The biggest thing is apathy. But if you have just a few people wanting the changes many others will go along for the ride. As you are loosening the reigns on restrictions you might even point out that you don't want to be like Frisco TX where they allow only certain brands of pickups. And do you really want someone to come tell you to take down the curtains you chose?