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Enforcing Covenants, Conditions and Restrictions

by Lyndel
(Manteca, CA)

How do you enforce a subdivision's Covenants, Conditions and Restrictions absent a Homeowners' Association?

Editors Reply: If there is no homeowners association, but yet all of you who own property have CC&R's in your deed (a slightly unusual situation), the person wishing to enforce those deed restrictions (which also could be called restrictive covenants) would need to seek a private civil action.

Obviously it would be best if you could resolve the situation out of court without the expense and bother of hiring an attorney. So make sure you have taken persuasion and face-to-face meeting as far as it can go.

If several property owners are violating the CC&R's, then a general meeting of the subdivision may be in order. In that venue you could see if several people are willing to divide up the work of meeting with the offending parties, and importantly, to figure out how many people would support the enforcement lawsuit financially.

Or maybe you would decide at that meeting that the infractions are not bothering that many people, and that therefore it will be hard to gather enough support.

Possibly some who are bothered will not want to get involved in a potentially stressful conflict or ultimately a lawsuit. That also will be good information for you.

One item to consider is whether you have an attorney living in the subdivision who might be able and willing to undertake this work pro bono (without pay). If so, that can make the decision to proceed much easier.

Make sure you have investigated the outside possibility that the behavior or action that is bothering you is covered under a general municipal, county, or state regulation. Usually CC&R's are drafted to cover situations that would not be regulated by any law or ordinance, but occasionally somewhat sloppy drafting or just a wish to emphasize a particular point will lead an attorney to write a CC&R provision that also is covered under law. Or you could lucky and find that a law passed after your CC&Rs went into effect will address your problem with existing conditions.

If you do not have a neighborhood association (which sounds unlikely from your question), this could be a good time to form one. In times such as these, it would be best to have some formal organization, with officers and procedures already established, to set up meetings and conversations about issues such as your wish to enforce CC&R's.

Incidentally this illustrates why we are not a huge fan of using deed restrictions to regulate behaviors, land uses, and physical conditions. Enforcing the deed restriction is always a private matter, and you have no government or government-backed enforcement mechanism to help you out.

Nonetheless, often when an errant property owner sees the neighbors becoming organized and possibly considering a lawsuit, attitudes toward the deed restriction in question suddenly change. This is more likely in the event of a resident property owner than an absentee owner who uses the property as a rental or vacation home.

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