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TJ, Esq.
TJ, Esq., Attorney
Category: Landlord-Tenant
Satisfied Customers: 12207
Experience:  JD, MBA
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I have lived in a patio home yrs. When we moved in it was

Customer Question

I have lived in a patio home for 11 yrs. When we moved in it was controlled by the contractor and now we have an association. Since the the first day I have refused to keep our trash can inside my garage (I build crafts in there). Now the association has stated that I am in violation of the governing documents and have 14 days to correct. I don't think that after letting this violation go on for 11 yrs that they can now enforce it.
Submitted: 1 year ago.
Category: Landlord-Tenant
Expert:  TJ, Esq. replied 1 year ago.

Hello and thank you for the opportunity to assist you. My name is ***** ***** I will do my very best to answer your legal questions.

Which state are you in?

Expert:  TJ, Esq. replied 1 year ago.

Also, was it always a violation even when the contractor controlled things, or is it only recently a violation due to a new bylaw?


Customer: replied 1 year ago.
I Believe it was always a violation but never enforced
Customer: replied 1 year ago.
Expert:  TJ, Esq. replied 1 year ago.

Hi again. Thanks for the additional information. I spent some time researching this legal issue, and I found some relevant Kentucky case law:

"Where the restrictive covenant has not been rigidly enforced, and where certain [...] uses have been tacitly permitted which are violative of the strict terms, but where, in spite of such relaxation, there still remains something of substantial value to those entitled to benefit by its provisions, they are still entitled to enforce it insofar as they were not affected by the principles of estoppel and waiver."

Colliver v. Stonewall Equestrian Estates Ass'n, Inc., 139 S.W.3d 521, 525 (Ky. Ct. App. 2003), quoting Hardesty v. Silver, Ky., 302 S.W.2d 578, 582 (1956).


The rule of law in regard to waiver of restrictions was succinctly stated in Bagby v. Stewart's Ex'r:

A change in the character of the neighborhood which was intended to be created by restrictions has generally been held to prevent their enforcement in equity, where it is no longer possible to accomplish the purpose intended by such covenant....

Colliver v. Stonewall Equestrian Estates Ass'n, Inc., 139 S.W.3d 521, 525 (Ky. Ct. App. 2003), quoting Bagby v. Stewart's Ex'r, Ky., 265 S.W.2d 75, 77 (1954).

So, the bot***** *****ne is that the covenant regarding the trash cans can still be enforced even though it hasn't been enforced for several years. The exception would be if there was a waiver per the definition above ... i.e., the failure to enforce caused a change in the neighborhood that makes the purpose of the covenant regarding the trash cans impossible. Since the purpose is likely the beautification of the neighborhood, and that purpose is still possible to achieve, it does not appear that a waiver would apply. Nonetheless, at least you know the arguments to make in court if this goes that far.

I am truly sorry that my answer may be bad news for you, but please understand that it would be unfair to you (and unprofessional of me) to provide you with anything less than an honest response. However, if your concerns were not satisfactorily addressed, then please let me know, and I will be happy to clarify my answer.

Expert:  TJ, Esq. replied 1 year ago.

Hello again. I didn't hear back from you, so I'm just checking in to make sure that you don't need more help on this issue. If not, then please remember to provide a positive rating (and note that your positive rating is the only way that I'll get credit for helping you, so I greatly appreciate it). Thank you!

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