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Ely
Ely, Counselor at Law
Category: Real Estate Law
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Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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If there is way to change a rule that has been written under

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If there is way to change a rule that has been written under the restrictive covenants? We are following rules written by an investor not a home owner and some of the rules seem to be unfair.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am sorry for your situation. The answer is yes, there is. A lot of individuals often believe that restrictive covenants are set in stone - this is not true.

An interested party (i.e. normally the party that holds the deed) has the ability to try and modify the restrictive covenant. However, to do so, you'd have to go to Court, I am afraid (or at least threaten to do so).

Now, the fact that you misunderstood the document is not an argument, I am afraid. But you may have an argument on the covenant being obsolete or unconscionable.

Using a Petition to Quiet Title, one can ask the Court to strike the restrictive covenants if one can demonstrate that they "are obsolete or that they are not serving their true function which is the achievement of justice according to law." Hill v. Mobile Auto Trim, Inc., 725 SW 2d 168 - Tex: Supreme Court 1987. Also, an unconscionable/unreasonable covenant may be stricken. Orkin Exterminating Company, Inc. v. Wilson, 501 SW 2d 408 - Tex: Court of Civil Appeals, 12th Dist. 1973.

Obsolete perhaps may be the best argument here, as well as unconscionable/unreasonable.

If the Court agrees, the restrictive covenant may be modified to allow swine as well.

So this is possible, however, you may have to go to Court to do so. But often, a letter threatening to do so will have the other party agree and to provide a waiver to avoid expensive litigation. Let me know if you need such a sample letter by using the REPLY button.

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Customer: replied 3 years ago.

I was told they can't do a waiver, it would be unfair to the other homeowners. I would like a letter showing the association, rules can be changed. They are under the impression they have to wait the full 30 years before they can change things. I know they have very little money because the dues are $24.00 a year. Maybe the threat of litigation based on being unfair about which animals are allowed and not allowed. Seems they are singling out swine for some reason. They say they don't really care but the restrictive covenants must be followed. Not one board member can tell me why a pig is not allowed other than the covenants written approx. ten years ago stated no swine.

Hello Lynell and thank you for your follow up.

I was told they can't do a waiver, it would be unfair to the other homeowners.

Well, it is not that they "cannot," but more like they will not. Whether it is fair or unfair to the other homeowners does not matter - they can do a waiver for your deed if they wanted to. Or, they can waive it for everyone.

I would like a letter showing the association, rules can be changed.

Sure, please see below for a sample:

Dear ___________,

This correspondence is in regards XXXXX XXXXX restrictive covenant restriction of (specifically explain which) that applies to my property.

While you make the claim that restrictive covenants cannot be modified, this is not true. Restrictive covenants may be stricken or modified by the Court if they are found to be " obsolete or that they are not serving their true function which is the achievement of justice according to law." Hill v. Mobile Auto Trim, Inc., 725 SW 2d 168 - Tex: Supreme Court 1987. Also, an unconscionable/unreasonable covenant may be stricken. Orkin Exterminating Company, Inc. v. Wilson, 501 SW 2d 408 - Tex: Court of Civil Appeals, 12th Dist. 1973.

As such, there is clearly a path to have these restrictive covenants changed. Ergo, demand is hereby made that a waiver be provided to me as I believe that this restrictive covenant is obsolete, unconscionable, and unreasonable. Unless this is done, I may have no choice but to seek relief in a Court of law to the same effect.

Sincerely,

Signature

Name


I hope this helps and clarifies. Good luck.

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Customer: replied 3 years ago.

Can I actually pick up the Petition to Quiet Title from the McKinney Court house? I would like the HOA to really believe I have done my homework and more than willing to follow up in court.

Thank you for your reply.

Can I actually pick up the Petition to Quiet Title from the McKinney Court house?

I am afraid not. This is a petition - drafted on a case by case basis - so a form for it does not exist. I do not believe that you can find a sample online, or at least, one that is close to what you seek, as a Petition to Quiet Title deals with virtually anything deed-related (adverse possession, CC&Rs, claims to property, etc).

I would like the HOA to really believe I have done my homework and more than willing to follow up in court.

The case law mentioned should be helpful. However, I am afraid no such petition exists immediately and has to be drafted in every individual case from scratch.

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