by Jennifer Sark
Visitor Question: We have a neighbor that is putting up a huge garage on a property that has a deed restriction. He received a cease and desist, but continues, the garage is 90% complete, next step is injunction. How often do deed restrictions win over these type of people that are ignoring the law. AND, to be fair, the rest of the neighborhood has to comply with the same restrictions, who is this neighbor to think he can get away with it?
This is a tough situation for a homeowners' association or subdivision to face.
Just so others benefit from the reply, which we're sorry to say is too tardy to be of much use to the original questioner, we should explain "cease and desist" is a type of order from a court that requires someone to stop what they are doing.
So if the property owner building the offensive garage is ignoring a court order, we have to suspect this means that this property owner is looking for a fight, on the grounds of his or her property rights.
Why people who feel this way would move into a neighborhood that has deed restrictions is beyond our understanding. There are many lovely places to live where there are no deed restrictions.
Just for our readers, also, an injunction also is an order from a court. Since Jennifer is saying that the injunction is going to be a second step after a cease and desist order, it may be that an injunction is a stricter standard in her state or jurisdiction.
If someone violates an injunction, that is cause for being held in contempt of court, which may be a criminal offense.
So this is serious stuff.
You ask how often deed restrictions are upheld, and the answer in most places is "always." However, the property owner increasingly is seen as having rights also. More and more courts look at whether the property owner knew about the deed restriction and knowingly acted against it.
After a "cease and desist" order didn't work to stop the violation of the restriction, though, ignorance and hardship aren't going to be a defense for this property owner.
So although we are not attorneys, we think your chances of ultimately prevailing are very good. It's just that the costs of various kinds may be too high.
Usually we advise over and over on this site that people try to have direct conversations with property owners as a first step. But not in this case. If the property owner is willing to ignore courts, the homeowners shouldn't step in.
Yes, it's very unfair that most people play by the rules, but others violate them when there isn't even a good reason.
This behavior probably indicates either an unstable person or some type of serious resentment against the homeowners' association or subdivision.
We hate to give advice indicating there's nothing you can do, but that's really pretty much the case here. Let the courts do their work, and make sure that you voice your opinion that your neighborhood should pursue this matter as far as its finances will allow.
Either that, or decide to drop the deed restriction, which probably isn't an option for you folks right now. Your garage builder may be able to block a change to the deed restriction.
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