![]() So, their limitations are legally binding for anybody who subsequently buys the property. In legal terms, restrictive covenants " run with the land." In other words, they apply to the property itself, and not the specific owner who makes the agreement. The covenant is typically written into the deed, or referenced in the deed and kept on file with a county or municipal government, or with a private entity like a homeowner's association. In the simplest terms, a restrictive covenant is an agreement between a property owner and other parties that limits the use of a property. How can this be? You don't remember signing any covenant. It turns out your property is subject to a restrictive covenant banning any pools on the premises. Then, you get a note in your mailbox from your neighborhood association. You've even got a brand new bathing suit waiting in the dresser for the first hot day of summer. You paid the contractor the deposit last week, and they're scheduled to come break ground on Monday. Should a homeowner bring a lawsuit against the HOA for selective enforcement of a clear violation, such as making structural changes without approval, failure to paint a home, failure to pay for agreed-upon services, etc., then the HOA may be able to file a countersuit to compel the homeowner to comply with the CC&Rs and to compensate the HOA for their legal expenses.That new pool in the backyard is going to be perfect. This can create a cascade of legal bills that are easily avoided through uniform enforcement of the CC&Rs. ![]() This often extends beyond the current board and involves investigating the actions of previous boards and their handling of CC&R violations. If this fails, plaintiffs can attempt to establish that the HOA has engaged in a pattern of selective enforcement. Homeowners who feel that they are victims of selective enforcement will often draft a letter to the HOA identifying the alleged violation and countering with evidence that either A) they are not a violation, B) the board is selectively enforcing CC&R’s by allowing other homeowners to commit the same violation, and/or C) requesting a hearing to discuss the alleged violation. Further, the HOA has a duty to all homeowners to treat each member fairly, honestly, and without favoritism. In the eyes of the law, all homeowners within an HOA have the same rights and responsibilities. There are many reasons that an HOA should not selectively or prejudicially enforce CC&Rs. Legal Liability for Selective Enforcement It is a vicious, downward cycle that is easily prevented through equal enforcement. ![]() Over time, this can significantly erode the effectiveness of the HOA, reduce revenue, and diminish home values within the community. It erodes trust in the HOA and creates a sense of “If neighbor X doesn’t have to abide by the rules, then why should I?” When HOAs selectively enforce these rules, it creates an unfair burden on homeowners who adhere to the CC&Rs. At the same time, homeowners agree to abide by these rules and expect that these rules will be obeyed by their neighbors. HOAs agree to enforce these rules uniformly and without favor to all who purchase property within the community. HOAs are charged with protecting the rights and property values of homeowners (the HOA’s members) in the common interest community. ![]() The Importance of Equal Enforcement of CC&Rs Of course, an HOA can always counter such suits by bringing a lawsuit against the homeowner for violating the CC&Rs. Failing to enforce these uniformly within the community can expose the HOA to selective enforcement lawsuits. HOAs are required to uniformly enforce all covenants, conditions, and restrictions within a community.
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