Real Estate Law

Have Real Estate Law Questions? Ask a Real Estate Lawyer.

Ask a Lawyer,
Get an Answer ASAP!

Real Estate Law
This answer was rated:

If there is way to change a rule that has been written under

the restrictive covenants? We are...
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.
Show More
Show Less
Ask Your Own Real Estate Law Question
Answered in 6 minutes by:
6/20/2013
Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 102,930
Experience: Qualified attorney in private practice including business, family, criminal, and real estate issues.
Verified
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.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Ask Your Own Real Estate Law Question
Customer reply replied 4 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.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ask Your Own Real Estate Law Question
Customer reply replied 4 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.

Gentle Reminder: Again, surely you prefer that I be honest in my answer – please remember that rating negatively due to receiving bad news still hurts the expert – it is simply the way that the system is set up. Please use REPLY button to keep chatting, or RATE my answer when we are finished. (You may always ask follow ups free after rating.)
Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 102,930
Experience: Qualified attorney in private practice including business, family, criminal, and real estate issues.
Verified
Ely and 87 other Real Estate Law Specialists are ready to help you
Ask your own question now
Ask Ely Your Own Question
Ely
Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 102,930
102,930 Satisfied Customers
Experience: Qualified attorney in private practice including business, family, criminal, and real estate issues.

Ely is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help.

Mary C.Freshfield, Liverpool, UK

< Previous | Next >

Meet the Experts:

Tina

Tina

Lawyer

5,436 satisfied customers

17 years of legal experience including real estate law.

Barrister

Barrister

Lawyer

11,126 satisfied customers

17 years real estate, Realtor. Landlord 26 years

Infolawyer

Infolawyer

Lawyer

7,785 satisfied customers

Experienced lawyer

Ray

Ray

Lawyer

7,559 satisfied customers

Texas Attorney for 30 years dealing in real estate

LawTalk

LawTalk

Attorney

6,207 satisfied customers

I have 30 years legal experience. Additionally, in CA I held a Real Estate Broker's license.

Dimitry Esquire

Dimitry Esquire

Attorney

5,526 satisfied customers

JA Mentor, multiple jurisdictions, specialize in business/contract disputes, estate creation & admin

Ely

Ely

Counselor at Law

102,930 satisfied customers

Qualified attorney in private practice including business, family, criminal, and real estate issues.

< Previous | Next >

Related Real Estate Law Questions
Subdivision restrictive covenants renewed without permission
Subdivision restrictive covenants renewed without permission from entire subdivision. Our original subdivision covenants were set to expire in 8 months. There has been some resent discussions/disputes… read more
Attyadvisor
Attyadvisor
Doctoral Degree
7,164 satisfied customers
As a homeowner in a HOA( prior to 3016 ) do I have a legal
As a homeowner in a HOA( prior to 3016 ) do I have a legal right to HOA gudgets and financials! … read more
Infolawyer
Infolawyer
Lawyer
Doctoral Degree
7,785 satisfied customers
My client is being sued by his Homeowner association and
My client is being sued by his Homeowner association and want him to sign a document that will authorized foreclosure. The Annual fees of the association are $250 and they are suing him for $5,000+ He… read more
Attyadvisor
Attyadvisor
Doctoral Degree
7,164 satisfied customers
Can a homeowners association deny a homeowner's application
Can a homeowners association deny a homeowner's application to plant trees within his property borders because it has a drainage easement where the trees will be planted? … read more
Barrister
Barrister
Lawyer
Doctoral Degree
11,126 satisfied customers
A homeowner vs HOA. My HOA sent me a letter using a
A homeowner vs HOA. My HOA sent me a letter using a 'hear-say' to accuse "someone in my unit" of HOA rule violation. I prepared a letter of one page asking the HOA not to use 'hear-say' and not to use… read more
TJ, Esq.
TJ, Esq.
Juris Doctor (JD)
11,257 satisfied customers
Can a HOA association be created and then immediately call
Can a HOA association be created and then immediately call itself inactive for 10 years because no dues or minutes have maintained or for any reason at all?… read more
Barrister
Barrister
Lawyer
Doctoral Degree
11,126 satisfied customers
Can a homeowners' association own land? If so can a
Can a homeowners' association own land? If so can a partnership that currently owns the land transfer it to the HOA? How is it accounted for on the partnership's books? Since the HOA is not a 501(c)(3… read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
7,385 satisfied customers
A homeowner in carmel South HOA. Recently, I questioned the
I am Tom Culpepper, a homeowner in carmel South HOA. Recently, I questioned the painting of a home being against our HOA policy by addressing the Board of Directors. They advised they would review and… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
Homeowner (me) in dispute with HOA. A tree owned by the HOA
Homeowner (me) in dispute with HOA. A tree owned by the HOA has caused significant damage to my driveway. They acknowledge ownership, but have set a cap on reimbursement for driveway replacement of $5… read more
Attyadvisor
Attyadvisor
Doctoral Degree
7,164 satisfied customers
Can the treasury of our homeowners association invest some
Can the treasury of our homeowners association invest some of the money that the association has in CD'S or any other type of investment? … read more
socrateaser
socrateaser
1,031 satisfied customers
I live in and the community is in a homeowners association.
Good morning. I live in Virginia and the community is in a homeowners association. … read more
lucy7368
lucy7368
Juris Doctor
763 satisfied customers
A homeowner in our association, is requesting contact
A homeowner in our association, is requesting contact information for our board and all contact information for the rest of the homeowners in our association. This sounds illegal, is it? … read more
Barrister
Barrister
Lawyer
Doctoral Degree
11,126 satisfied customers
I have lived in a homeowners association in Florida. The HOA
I have lived in a homeowners association in Florida. The HOA has both long term or residential and short term sections clearly defined. I live in the short term section, we pay more than 3 times the r… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
A supposed homeowners association and the new builders that
A supposed homeowners association and the new builders that bought 5 lots went into an agreement to maintain a private road. Since they own the road the Parrish won't help and soon garbage mail or any… read more
Attyadvisor
Attyadvisor
Doctoral Degree
7,164 satisfied customers
What is the liability to a homeowners association for
What is the liability to a homeowners association for property that was dedicated to them? … read more
Infolawyer
Infolawyer
Lawyer
Doctoral Degree
7,785 satisfied customers
I am a homeowner of a condo in texas, can an hoa association
I am a homeowner of a condo in texas, can an hoa association stop the sale of unit over hoa dues owed, I have under contract now a cash sales fast close, they are trying to forclose, but I have a buye… read more
Ray
Ray
Lawyer
Doctoral Degree
7,559 satisfied customers
I am a member of a homeowners association and my question
I am a member of a homeowners association and my question relates to restrictive covenants. The association articles of incorporation have been established and in place for decades. We now would like … read more
Ray
Ray
Lawyer
Doctoral Degree
7,559 satisfied customers
I have a question concerning a restrictive covenant. It says
I have a question concerning a restrictive covenant. It says that a fence shall not be nearer than the front property line than the front corners of the dwelling. The dwelling is my home. One corner i… read more
Barrister
Barrister
Lawyer
Doctoral Degree
11,126 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x