Since 1989, Gammon & Associates has devoted its practice to representing community associations. Designed to be a self-contained, efficient legal agent for community associations, the firm offers its clients a results-driven legal fee billing approach. Instead of unlimited billable hours, Gammon & Associates typically doesnt collect until our clients do. The result is a cash-flow-positive legal strategy for our clients who avoid the risk of traditional law firm billing models. Hows that for a cost-effective legal solution?

Tuesday, August 21, 2007

Enforcing Restrictive Covenants Means Exercising Vigilance

A recent case handed down by the Texas Court of Appeals confirms what most of you already know: properly enforcing the deed restrictions in your community requires constant vigilance. In that case, Girsh v. St. John, the defendant homeowners successfully won their appeal when the appellate court ruled that the statute of limitations had run out on the deed restriction violation.1 In other words, the complaining neighbor had waited too long to enforce the restrictions, and thus, lost her right to do so. The controversy stemmed from the defendant homeowners placing a mobile home on their property in violation of the subdivision's restrictive covenants. St. John, a fellow homeowner, sued to enforce the restrictive covenants based on her 1998-99 discovery of the mobile home on defendants' property. But since the mobile home had been in place on the property since 1984, nearly 15 YEARS before any legal action was taken in this matter, the ultimate question became one of diligence: was the violation generally discoverable by exercising reasonable diligence?

One would think that, generally, a neighbor would notice if a mobile home was resting on an adjacent property, right? Well, St. John argued that the foliage and overgrowth of bushes and greenery on the Girshes' land obscured the view of the mobile home and prevented discovery of same until the neighboring land was cleared sometime in 1998 or 1999 thereby exposing the mobile home to public view. And this theory seemed to strike a chord with the trial court, which ruled in St. John's favor. But the appeals court thought differently:

we find that, as an owner of property in Tall Timbers, Section Two, St. John "had some obligation to exercise reasonable diligence in protecting [her] interests" (quoting HECI Exploration Company v. Neel, 982 S.W.2d 881 (Tex. 1998)). The record evidence indicates the mobile home was present in the Girshes' back yard openly, and there is no evidence of the use of artificial devices or methods to camouflage or hide it. St. John's request for application of the discovery rule would require us to hold a full-size mobile home's presence on a residential lot in violation of a restrictive covenant, with said lot located in a highly populated subdivision, is a category of injury inherently undiscoverable even with the exercise of reasonable diligence, because of the presence of indigenous flora spontaneously growing nearby. A decision by us favorable to St. John would mean that she had established that the category of reasonably diligent property owners would not discover the existence of a full-size mobile home on a residential lot in the midst of a populated subdivision during the four-year limitations period.2

And so it went. The Girshes won the appeal and St. John, as well as all vigilant homeowners and community associations, was taught a valuable lesson. When you see a violation of the restrictive covenants in your subdivision, take action now rather than later. Sure, all cases won't deal with a 12' x 46' mobile home resting in a neighbor's backyard, but the point is to take notice of the condition of property, open your eyes to deed restriction violations, and solicit input and feedback from your membership (who most often know more about the alleged violations occurring at any given time than the association.)

The statute of limitations for enforcing a deed restriction violation is generally four years, which is generous, compared to other certain causes of action. Don't get caught in the "limitations trap" as detailed in the case above and be proactive in your association's deed restriction enforcement program. Deed restriction enforcement not only protects homeowner value, but it also promotes the community aesthetic while preserving an overall balance between individual homeowner expression and collective neighborhood beautification.

*Special thanks to the Community Associations Institute Law Reporter July 2007 edition for reporting this case in its monthly newsletter.

1 See Girsh v. St. John, 218 S.W.3d 921 (Tex. App. - Beaumont 2007).
2 Girsh, 218 S.W.3d at 935-36.


Anonymous Anonymous said...

Our sub-division was started in 1970 at which time the Deed Restrictions stated clearly that no trailers permament or temporary where allowed. Now forty years later a petition has been before the people to stop the entry of anymore trailer homes. They are talking about using the insturment of the Grandfather Clause to protect the exsisting trailer homes allowing them to replace or upgrade another trailer home in the future. I have a hard time understanding how you can Grandfather a Deed Violation. Some say that they can use the Statues of Limitations to overlook the older trailer homes and now they are adding other violations in order to enforce the new boards changes in the Deed Restrictions. In addition they are saying this can be done by the fifty percent plus one vote, as I understand it takes two-thirds vote of all property owners to change a Deed Restrictions. What is your take on this? Thank You, C. Birdsell

3:24 PM


Post a Comment

<< Home