Validity of Unenforced Covenants
Visitor Question: If a violation of a covenant is allowed to exist without any action on the part of the HOA, is the covenant still valid the next time it is violated?
Editors Reply: Yes, the restrictive covenant that is part of your master deed in a development having an HOA (homeowners' association) is still valid even if the HOA does not move to enforce other violations of the same covenant.
This is similar to what happens if one speeding motorist is not stopped by the police. Is the speed limit invalid? No, that's not the case. We would say that nforcement simply is uneven.
Although a simple question deserves a simple answer, we can't resist pointing out one complication.
Unlike speeding laws, covenants attached to deeds to real estate have to be enforced either through the exercise of power by a private organization, the HOA, or through action in the civil courts. Covenants cannot be enforced through appeal to a governmental official.
Further, if a property owner chooses to ignore the HOA if it bills for a fine, for example, the HOA board itself may not have an enforcement mechanism other than going through the courts. Some HOAs have robust mechanisms for making sure homeowner obligations are paid, such as the ability to tap bank accounts, while others do not.
Either way, if enforcement is lacking in one instance or many, this factor may limit effectiveness in court. Probably the defendant in a legal action would point out the weak or inconsistent enforcement of a particular covenant, and that record might or might not sway a judge or jury in the defendant's favor.
So what can be done if an HOA recognizes on its own, or because a member has pointed this out, that the HOA failed to enforce a covenant and now wishes to enforce the same covenant against a different homeowner?
First, it may or may not be good practice for the HOA to acknowledge the earlier error officially in meeting minutes. If that action is a preface to a new resolution stating that the policy from now on is strict enforcement of the covenant, this may be helpful. The advisability of this should be discussed with an attorney, and based in part on the seriousness of the potential violations of that covenant, the prevalence of violations, and turnover in members of the board of the HOA.
Second, the HOA may decide to send formal notice to each member calling attention to the particular covenant, stating that it intends to enforce it fully and through all means available to it, and possibly giving a certain number of days for compliance to occur before enforcement commences.
Again, such a decision would be based on the seriousness of the matter, the history of enforcement, the prevalence of the violation, and the overall length and complexity of the CC&R document governing the condo or townhouse association, or subdivision.
It does not hurt the HOA board to recognize that many or most homeowners have purchased their unit without ever reading the covenants or having them explained. Thus, sometimes violations are simply based on ignorance. If it distributes a written notice calling attention to one covenant, that can be helpful in obtaining compliance with that provision but not necessary overall.
So you see there are many factors an HOA would need to weigh before deciding how to proceed when a covenant has not been enforced previously.
But no, the covenant is not invalidated because homeowners have been allowed to disregard it previously, whether in one or many instances.
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.