Tags: Real Estate

It is likely that under the covenants, conditions and restrictions (“CC&R’s”) that govern your neighborhood, by accepting a deed to the property, you have bound yourself to certain covenants, either by agreeing to do something (affirmative covenant); or, by not doing something (negative covenant). 

For example, an affirmative covenant may require you to install lawn irrigation and sod the lawn prior to occupancy.  A negative covenant may provide that you may not erect a flag pole in excess of 10 feet.  So what can you do when your neighbor puts up a 30-foot flagpole? In other words, how do you as a property owner, enforce the covenants?

The answer first depends on what type of community your property is located in.  If it’s located in a subdivision (often referred to as a “planned community) or is a condominium, the Home Owners’ Association (“HOA”) likely has the authority to enforce the covenants and the rules and regulations adopted by it and bring any proceedings which may be instituted on behalf of or against the home owners.

If there’s no HOA or the HOA does not have the authority to enforce the covenants, then the homeowner who wishes to prevent his or her neighbor from breaching a covenant must enforce it as an individual home owner or along with other similarly situated home owners. However, covenants and restrictions can also be enforced by Municipal Utility Districts, Cities, and Counties.

Assuming you live in a community with an HOA that has the authority to enforce covenants, the HOA will likely have procedures addressing violations of CC& R’s or requests for exemptions or variances.   Accordingly, you may ask your HOA to enforce the restriction on flagpoles against your neighbor by holding a hearing.

A hearing by an HOA concerning an alleged violation usually starts with progressive action, such as a written or verbal warning.  If the subject of the warnings does not come into compliance, the HOA must look to and follow the internal notice and hearing requirements set forth in the covenants or in the bylaws of the HOA.

 At a hearing before an HOA, the alleged violator may present their defenses or objections.  If the hearings are of a more formal nature, residents may present witnesses or cross-examine individuals who have alleged violations. The decision and resolution may be by vote of the HOA, possibly with appeal to the Board of Directors of the HOA. Bear in mind, however, that an HOA cannot evict residents, remove personal property or otherwise violate the personal rights of the residents in an attempt to enforce covenants. 

If the HOA cannot resolve the alleged violation, the HOA may bring legal action against a resident to enforce a covenant, and a Court may render a formal judgment for or against the alleged violator.  Such a cause of action is usually brought under common law theories that mirror the covenants, such as alleging private or public nuisance or disturbing the peace.  The Court may-in addition to other remedies- award monetary judgments, impose injunctions, impound vehicles or compel removal of personal property (such as a 30-foot flagpole).

In essence, if enforcement of the covenants is by the HOA, the ultimate responsibility for their enforcement lies with the Board of Directors. Failure to act can result in legal consequences.  If your HOA is uncertain how or whether to proceed with enforcement of covenants, contact one of our real estate attorneys today! Feel free to stop in to our Omaha law firm, Sioux Falls law firm, or Sioux City law firm! For more real- estate information, visit our Real Estate Lawyer blog today!


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