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Category: Real Estate Law
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Hopefully a quick question answer. I live in a development

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Hopefully a quick question answer.

I live in a development that has deed restrictions which have never been enforced by the original developers (who have long ago relinquished all interest in the development) as there is no home owner's association. Tthe deed says five homeowners can form on their own, a HOA, but that has never been in in almost 40 yrs. Question is, can a newly formed HOA enforce deed restrictions that were never enforced in the past, so now there is precedence, i.e. trailers, signs on property, converstion of individual homes to rental properties, etc.?

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Tough situation.

You really have two issues here:

1) an HOA - can one be initiated - yes, even though it hasn't been operational for many years. The fact that there is an HOA is in the deeds. Technically is can only be dissolved with 100% of the owners to do such. Otherwise, 5 owners can resurrect the HOA and enforce the restrictions.

2) the deed restrictions - they can be individually enforced by any owner - an HOA isn't absolutely necessary to do such. However, ALL the restrictions must be enforced - not just some.


Question is, can a newly formed HOA enforce deed restrictions that were never enforced in the past, so now there is precedence, i.e. trailers, signs on property, converstion of individual homes to rental properties, etc.?

Yes, absolutely. But there would have to be some things done over time - ie. the leases would have to be allowed to run till they end - then they couldn't be renewed. But that's the toughest issue - any of the other things, unless it would cause economic waste and laches could be argued.

Laches (/ˈlæɨz/; LA-chəz; Law French: "remissness", "slackness", from Old French laschesse) is an "unreasonable delay pursuing a right or claim...in a way that prejudices the [opposing] party" When asserted in litigation, it is an equitable defense, or doctrine. The person invoking laches is asserting that an opposing party has "slept on its rights," and that, as a result of this delay, circumstances have changed such that it is no longer just to grant the plaintiff's original claim. Put another way, failure to assert one’s rights in a timely manner can result in a claim being barred by laches. Laches is a form of estoppel for delay. [wikipedia]





First, as to establishing the HOA - that would be difficult because those owners who don't want such can argue that the HOA has been abandoned.

The argument is that the HOA is abandoned
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