Preserving Restrictive HOA Covenants
Some people love them, and some people hate them — those restrictive covenants that help preserve the value of your home and community. Few people like the word “restrictive”, but restrictions and rules are a big reason that people choose to live in an HOA. Restrictive covenants may include breeds of pets, fence types, paint colors, parking restrictions, outdoor buildings, and more.
There have been a lot of comments on the interesting blog of Donna DiMaggio Berger about the recent case of Southfields of Palm Beach Polo and Country Club HOA, Inc., et al v. McCullough. In this case, a landowner filed a complaint claiming that the Association’s board was refusing to preserve the Declaration by failing to record the permissive notice of preservation allowed under Florida Statutes. The Court determined that the declaration was intended to preserve the equestrian nature of Southfields, which required that the board exercise its powers to maintain the declaration unless ninety-five percent of landowners voted to dissolve the declaration and disband the Association.
The Southfields case created a stir in community associations. While restrictive covenants can be amended with the consent of property owners, it becomes more difficult to do when the covenant is connected to the lifestyle in the community. In the Southfields case, it was an equestrian lifestyle, and there are other lifestyles such as golf or water sports that can be linked to a community. Thus, the Board’s decision to preserve or not preserve a covenant takes on more importance when it’s linked to a community lifestyle.
As time passes, some restrictive covenants can become outdated or new laws make enforcement challenging. Still, some HOA Boards continue to be proactive in preserving old covenants because they are important to some of the property owners. Now, associations are criticized for lax enforcement of old covenants. It’s a challenging balance, especially when you can’t please everyone. If you have questionable or older covenants for your HOA, it’s important that your Board members are aware of potential problems in enforcing vs. not enforcing all covenants.
Fortunately, most restrictive covenants don’t fall into the lifestyle category, so dated covenants can be amended when the members approve. Even if this case doesn’t directly impact your association, it is still a good reminder to review your existing covenants. Are they current, clearly written and enforceable? Do they reflect legal changes? If the answer is no, it’s time to consider amendments. Work with your HOA attorney to ensure that an amendment is adopted and recorded correctly.