Visitor Question: Our deed restrictions have no expiration date and run with the land. But the starting board retired and a new board was never installed. Residents are saying we have no deed restrictions now and I do not believe this to be true. At no time was there a vote to abolish the restrictions, and they remain in effect. Is this true?
Editors Respond: Yes, we agree with you. With deed restrictions and master deeds to subdivisons and other developments, you never can predict exactly what will be true until you read the document. However, as a generalization, you would be correct. But do read what is actually stated before you act on this.
It would be unusual for deed restrictions to be somehow wiped out because there was no homeowners association functioning board to administer them. Again as a generalization that you would have to check out for yourself, the HOA board often acts as the typical enforcer of deed restrictions. However, even if there is no board, typically any person with legal "standing" (meaning a right to sue) could file a suit for enforcement of the restrictions. That's just not as easy as having an HOA board that has the power to levy fines until a homeowner decides to comply with the restrictions.
The bottom line is that if something that is a violation of the deed restrictions is bothering you, now you would need to employ your own attorney and file a suit. Of course the attorney will have his or her own ability to read and interpret exactly what your deed restrictions say.
There could be something oddball like the master deed saying that if there is no functioning board, the restrictions are null and void. But we certainly think the chances of such a thing are low.
Your situation is really the same as people who live in a development where no HOA was ever formed, despite the fact that the restrictions aimed to set one up.
If you and your neighbors get together and decide that you don't want to have the deed restrictions, now you have an opportunity to make them disappear. In that case you will need to read the deed or covenants to see what percentage of property owners must agree to a change in the covenants. In any well-drafted set of restrictions, the procedure for amendment will be specified. If you need 100 percent agreement, you might want to know that before you start the process of trying to dismantle your current scheme, if that is what you would like.
Subscribe to our monthly e-mail newsletter, called USEFUL COMMUNITY PLUS, which provides you with short features or tips about timely topics for neighborhoods, towns and cities, community organizations, rural environments, and our international friends. Unsubscribe any time. Give it a try.