Alth
ough the often dreaded Homeowners Association (or “HOA”) has been around for a long time, its widespread use goes back only a few decades. Prior to, say, 1980, it was common for new subdivisions to have covenants, but no reasonable way to enforce them. This begs the question; “why have covenants if they can’t be enforced?” Enter the HOA, an entity designed and created to answer that question.
Many early covenants had provisions that after 30 years or so the majority of homeowners would have to petition to renew them. Some covenants had the opposite provision — i.e., they automatically renewed unless a majority of homeowners agreed to abandon them. All covenants, whether still valid or not, are recorded and thus provided with other title docs.
Let’s say you live in a subdivision with still enforceable covenants but no HOA. The only way to enforce the covenants against a homeowner who is in violation of them would be for one or more homeowners to file a civil suit against the offender. Obviously, that is not practical, which is probably why developers of new subdivisions started including an HOA in their CC&Rs — Covenants, Conditions and Restrictions.
Some older subdivisions such as 6th Avenue West have created “neighborhood associations” with voluntary dues (usually under $100 per year) which are used to create community through various activities, such as picnics and newsletters. That sense of community can in turn contribute to social pressure for members of the community to abide by the provisions set forth in the covenants.
Lakewood Estates, a 1980s subdivision across Jewell Avenue from White Fence Farm, has taken this approach a step further. This voluntary HOA exerts pressure and has even shown a willingness to take legal action against residents who violate provisions of their older, but still existing covenants.
What neighborhood associations can’t do is to levy fines against homeowners. HOA fines can become liens against the property, too, so they always get paid, along with unpaid dues, even if only at closing upon sale.
Do you have experience in dealing with old and possibly unenforceable covenants? I’d love to hear about it. Contact me at 303-525-1851 or email me at Jim@GoldenRealEstate.com. I may do a follow-up article on this topic.
Golden Real Estate's Blog 
I’m getting pressure from the developer of my neighborhood (no HOA in place) that I am in violation of a covenant regarding a newly installed fence on my property. However, there are 2 other houses in violation of the exact same covenant. Their response was “well, those have been there for decades.” Does that matter? Also, there are multiple other homes in violation of different covenants. If they attempt to enforce one shouldn’t they enforce them all? Thanks in advance.
LikeLike
Speaking as a layman (I can’t provide legal advice, but I can refer you to a real estate lawyer), this does sound like unfair discrimination, perhaps done to punish you because you got on the wrong side of someone, which makes it legally suspect. However, since there is no HOA, the only action (I think, again as a layman) that a neighbor can take against you is to sue your civilly, not just jaw-bone you to comply with the covenants. Make them sue you and make your argument to the judge about how you have been singled out. If the covenants pre-date the other neighbors’ violation, then I would think that the argument about being decades old doesn’t matter. The concept of “grandfathering” only applies when something was done before the covenants were implemented.
LikeLike
Thanks so much and I appreciate your quick response!
LikeLike
We bought a house a year ago and tried to make sure there was no HOA period. We never heard of a covenant with no HOA but we recently learned about it when a neighbor 4 doors down tried to say if we built a pole barn he would sue us and sent us the covenant from 92. Unfortunately it’s still in effect. BUT it just says no structures that aren’t approved by the builder first. But the builder (who we know) says they don’t have anything to do with it after 10 years. There are only 8 homes in this covenant. It doesn’t say anything about permanent or not. 6 of the 8 all have sheds. But they pretend that’s something different. He has a lot of money and has nothing to do besides bully people because I heard of the same guy giving a family a hard time building on theirs also. I feel he has no case. But he just had his lawyer send us an email that we must stop all proceeds in building our pole barn because they say we are building for our painting business. Yes some stuff might go in there but we also have tons of tools we bought to fix this house up and we have 3 little kids with a bunch of outdoor toys we need a place to put them up, and we have our riding lawn mower, gardening tools, and other stuff for working in the yard. The only thing business related would be our ladders!? And they said we are using it to store business vehicles. I have a suv for our kids and he has his truck that yes he uses to go to work but it’s his everyday truck and his only vehicle! How is this being built for a business and not personal use!? Do u think we should let them take us to court or give up?
LikeLike
I would ask for a sit-down with him and his lawyer to see what he would accept as well as to explain what you’d use it for. It’s probably the size that bothers him. From what you described, it sounds like a large shed might be sufficient to your needs, and since other people have sheds, you should be able to also. People fear what they don’t know is coming. Keep in mind that if you do go to court and prevail, nothing will keep him from appealing because he has unlimited funds for that, and you probably don’t. (This has been Trump’s approach to not paying vendors. They can’t afford to sue.) It’s called legal harrassment, and I experienced that myself in Hawaii. A neighbor complained that I needed a variance to conduct a business in my home. I got the variance, and he sued the county and me claiming that it was wrongly granted. Since my business was a corporation, I could not be pro se, I had to hire a lawyer. I gave up and left Hawaii with my business.
LikeLike
I live in a subdivision with 15 homes. No HOA. But we do have CCR’s. Many people are not abiding by CCR’s. We are to have no vehicle’s , garbage cans, boat’s in front yard or next to garage. This is way out of hand as many are breaking these rules. Yard light is a must. One breaking this rule for 15 years along with two other ones with Panel Vans in driveway with a business on the side of them. That’s not allowed. No businesses allowed which one has two signs selling wood. No sheds allowed which one has a 12×20 canvas pole shed in back yard. People are poring concrete next to there garage for cars and trailers along with there garage cans and other junk. Can I put up a shed? Thank You
Jeff
LikeLike
This was foreseen, I believe, when developers started creating HOAs to enforce their covenants. Without an HOA, you can only sue a neighbor in civil or small claims court. Obviously you can violate the covenants and put up your own shed and expect no consequences.
LikeLike