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Deed Restriction Enforcement Without HOA Management

by Wendeth
(Wakefield, RI )

Visitor's Question: I have a buyer who is interested in purchasing a home in a neighborhood with 2006 deed restrictions and an HOA (without management). The buyer owns a boat which is not allowed according to the recorded deed restrictions. There are other homeowners in the development that have boats on their property.

The buyer is reluctant to purchase. What would be the process if he purchased the home, stored his boat on the property, and one of the homeowners took issue with the boat?

Editors Reply: We apologize for overlooking this question when it was asked. But it addresses an important general topic, so we decided to answer.

Enforcement of deed restrictions is always a private matter. In other words, another resident could not call the city or county and ask them to enforce the deed restriction (unless the local government has taken the unusual step of providing in their ordinances that property owner behavior must conform to deed restrictions).

So who enforces deed restrictions? A property owner who disagreed with boat ownership contrary to deed restrictions would need to either ask the HOA (homeowners association) to enforce the restriction, or sue in a court of law.

Whether or not the HOA employs a manager or a management firm really is not relevant to the process. The HOA board might or might not have the power to levy fines and other penalties, depending on the way the master deed or other covenants are structured. If the board has this power, this can occur with or without a paid manager other than the usually volunteer members of the HOA board of directors.

If the HOA does not have any meaningful enforcement powers, a homeowner who objected to the boat might ask the HOA board to pay for the attorney to take all boat owners to court. If the board refused to come up with the money, or did not want to cause the commotion of dealing with a lawsuit, then an individual property owner who objected could foot the bill and file a lawsuit on his or her own.

The lawsuit probably would seek injunctive relief, meaning a court order giving the boat owner a certain number of days to move the boat. An owner also might ask for damages, but a judge may be more likely to simply say move the boat and stop violating the deed restrictions.

So the larger lesson here for all of our readers is that a deed restriction applies to all property owners, whether or not there is a visible group, person, or firm responsible for managing a homeowners association.

If your prospective buyer were a less scrupulous individual, he or she might consider that the odds of ever being challenged about the boat would decrease dramatically if the HOA does not appear to be staffed, and that the risk would be worth it.

But actually we think this is a smart and ethical prospective buyer. The culprit here, in our opinion, is the deed restrictions themselves. The HOA board should consider whether they want to change the covenants to be more in line with current practice. Sometimes changing the covenants is difficult, and sometimes it is easy, depending on the process that the master deed or covenants themselves spell out.

But when deed restriction enforcement becomes a problem, changing the covenants may be the most realistic and humane path forward.

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