Neighbor Singles Me Out on Infraction

by Jose
(Houston,tx )

Visitor Question: The deed restriction states that we cannot have a fence on the front yard of the house. Various neighbors have fences on the front yard but my neighbor from the same street one block over is complaining and asking me to remove my fence. If he wants to enforce the deed restrictions wouldn't the whole neighborhood need to comply? There is no HOA just a civil club that has one member.

The are multiple items on the deed restriction that are been violated by other neighbors including car ports, building close to the back easement, less than 51% brick, and car parking. But it seems that my neighbor just wants to complain about me. Can she enforce the deed restriction just on me?

Editors' Reply: Yes, of course deed restrictions should be enforced evenly on everyone in a subdivision or condo association. This is just a general principle of law in the U.S., regardless of who is doing the enforcing.

We note that you are asking the question from Houston, so first we will deal with it from the perspective of the unique way Houston handles deed restrictions, and then we will try to broaden the answer to include the rest of the U.S. at least.

Houston does not have a zoning ordinance, so the city has gotten into the business of enforcing some deed restrictions that pertain to topics typically covered in zoning. These include land use, setbacks, lot size and type, direction that buildings are facing on the lot, and some fences.

So in your case, the person complaining may have filed a complaint with the city. A front fence would be easy for a city inspector to observe, so it might be relatively soon that you would be sued, with the city asking for what is called an injunction. An injunction is a court order for you to do or not do something.

The fact that other people also have front fences might or might not influence a particular judge about whether you should be ordered to take down your fence. Certainly you could try to have those other instances presented to the court.

We would point out that you too have the right to complain about some of these other violations of deed restrictions that you observe in your subdivision. You could make as many complaints as you would like, although Houston might ask you to give testimony about each one you file. So that could be a nuisance to you.

We have to be amused that you say there is a civil association with one member. It's not much of a neighborhood association, is it? But if there is no HOA, it's perfectly appropriate and even important to have a well-functioning neighborhood association. We have plenty of information on this site about how to start a neighborhood association.

All right, for the rest of the country, we would say as a generalization that one neighbor cannot enforce a deed restriction unless that neighbor wants to go to the trouble of filing a lawsuit. In this case, though, that neighbor would have trouble winning in many places because of the widespread violation of the restriction. Also elsewhere in the country, the neighbor would not have any help from the city government in the form of filing the lawsuit and experience doing just that.

Also outside of Houston the viability of a lawsuit against just one person when several are violating the covenants probably would be challenged.

So Jose, you are in an unusual position. You may want to think about hiring your own attorney. If you do, choose someone who has quite a bit of experience with deed restriction enforcement through local courts, and follow the advice of your lawyer.

For all of you still reading, regardless of where you live, think seriously about starting a good neighborhood organization if you have no HOA but do have deed restrictions. A functioning association is about the only hope for sorting out a situation in which there are numerous violations of several covenants.

By the way, we should point out that you can still start a neighborhood association if you do have an HOA. This is particularly appropriate in instances where the HOA board is not very active, inclusive, or transparent in its functioning.

It seems as though the neighborhood needs to figure out which of the covenants are worthwhile for the future vitality of the neighborhood, and then look at what the covenants say about changing or amending them.



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