Can neighbors create an HOA to fight existing deed restrictions?

by Eric
(Maury Co, TN)

Visitor Question: I live on a street that was once land owned by a family that lives nearby. When they created the lots, they attached sweeping deed restrictions that appear to be indefinite.

The approvers for all changes are the patriarch, who is very old, and the original developer who built the first 3 houses on the street.

A new developer just built on an additional 6 lots almost filling the street.

The daughters of the original land owner have become the gatekeepers for the covenants.

Is there any way for everyone on the street to form an HOA and take ownership of the covenants? Secondly, what happens when one of the 2 owners of the restrictions passes away? As you can imagine, it is strange to have one of the daughters constantly driving up and down our street looking for infractions and asking people if they submitted requests. She may have power of attorney to act on behalf of her father so for now, everyone is avoiding confrontation.

Editors Reply: We can make several comments about your situation. First you ask if you can form a homeowners association (HOA) and take over the covenants. The clear answer everywhere in the U.S. is no, although we always have to caution that we are not attorneys and also have not experienced case law in all 50 states.

By their very nature, deed restrictions are imposed by someone who owns land at some point. In most states they do not expire ever, until they are altered by some process set up in the covenants or until the original owner who imposed the restrictions consents or his or her heirs do. Thus deed restrictions never transfer (unless a process would be explicitly defined in the restrictions themselves). They do not expire unless so specified in the covenants or in state law.

So if you want to form a homeowners association, which we would suggest that you call a neighborhood association or something else other than an HOA, you could do so for other reasons, but that would have nothing to do with the deed restrictions.

When a person who imposes the restrictions dies, the restrictions live on. Often this means they become even more cumbersome to deal with, since changing the restrictions often requires dealing with each and every heir, whether these people are easy to find or not. (Again, we say the restrictions live on, but there is a very tiny chance that the deed restrictions themselves say that when one or both of the original owners die, the restrictions will cease. You really do have to read the exact language of the deed restrictions, if you haven't already.)

You can draw your own conclusions based on this information, but you might think about whether you really object to the deed restrictions themselves or whether it is the sense of being watched by the daughter of the original owner that is making you feel uncomfortable. If you and your neighbors genuinely object to the content of the deed restrictions, you might try to set up a meeting with the family to see if you can talk them into altering them.

Since the street is almost built out, and apparently nothing disastrous has happened, maybe the family would be willing to change the restrictions. You could offer to sweeten the pot by sharing their legal and recording bills for doing so.

Now let's suppose that you folks really do not have a problem with the restrictions, but you want the snooping to stop. In that event, we would suggest that you try a friendly and casual invitation to have coffee or barbecue with all of you. When everyone is mellow, ask if she could be less intrusive in trying to enforce her parents' deed restrictions. It is possible you might modify her behavior a bit. No doubt she is just trying to guard mom and dad's intentions.

Your situation is a bit unusual in that the first builder also has rights to enforce the deed restrictions. That complicates the matter further, as you have more people to meet with than we discussed above. But this point illustrates the fact that deed restrictions often present a multitude of problems for home owners. For reasons such as your example calls to mind, we wish that the use of deed restrictions would decline in the U.S., but alas, the practice is quickly accelerating. Good luck in working with this situation.

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