What Can Your Association Do When Owners Build Structures That Violate Covenants?

When owners go ahead with new construction that’s prohibited by restrictive covenants, it can leave association boards at a loss. Often, they’re skeptical that a court will go as far as to order the destruction of an offending structure. But a recent case out of Michigan proves otherwise, and our experts say it’s happening in other states too.

The case involved a subdivision with 26 lots. The subdivision has a restrictive covenant prohibiting home construction beyond its “timber line.” The declaration also provides that no buildings can be erected until the plans and specifications are approved by the developers or their successors (the development company dissolved in 1999, with no apparent successor).

“Lately, there seemingly is a whole undercurrent of people who take pride in asking for forgiveness, rather than asking for permission,” says Robert Ducharme, a solo practitioner who has represented New Hampshire associations for 20 years. This case could be an example of just that.

The plaintiffs’ family had owned Lot 21 since the 1960s. In 2019, the defendants, who purchased Lot 22 in 1994, began to build a home.

The prior year, when surveyors’ stakes first went up, the plaintiffs had sent the defendants a letter stating that they believed the planned home violated the restriction on building location. Specifically, they asserted that it would be too close to the timber line. They sent another letter in May 2019, after they learned the defendants had obtained a building permit.

After construction started in July 2019, the plaintiffs sought a preliminary injunction to block the defendants from continuing to build in the current location (the subdivision didn’t have a community association). The case ultimately went to a trial court after multiple warnings had been disregarded by the defendants.

In a new article, we explore the details of this case. Our experts also share key lessons it offers for associations, including changes to make to your documents and enforcement practices to ensure you prevail should your association face a similar dispute.

You can read the article here:
Court OKs Demolition of Construction That Violated Covenants

Best regards,
Matt Humphrey
President