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Real Estate & Property Law

: a View from the property line

Enforcing Restrictive Covenants Means Exercising Vigilance

By William G. Gammon

A recent case handed down by the Texas Court of Appeals confirms what most of you already know: properly enforcing the deed restrictions in your community requires constant vigilance. In that case, Girsh v. St. John, the defendant homeowners successfully won their appeal when the appellate court ruled that the statute of limitations had run out on the deed restriction violation.1 In other words, the complaining neighbor had waited too long to enforce the restrictions, and thus, lost her right to do so. The controversy stemmed from the defendant homeowners placing a mobile home on their property in violation of the subdivision's restrictive covenants. St. John, a fellow homeowner, sued to enforce the restrictive covenants based on her 1998-99 discovery of the mobile home on defendants' property. But since the mobile home had been in place on the property since 1984, nearly 15 YEARS before any legal action was taken in this matter, the ultimate question became one of diligence: was the violation generally discoverable by exercising reasonable diligence?

One would think that, generally, a neighbor would notice if a mobile home was resting on an adjacent property, right? Well, St. John argued that the foliage and overgrowth of bushes and greenery on the Girshes' land obscured the view of the mobile home and prevented discovery of same until the neighboring land was cleared sometime in 1998 or 1999 thereby exposing the mobile home to public view. And this theory seemed to strike a chord with the trial court, which ruled in St. John's favor. But the appeals court thought differently:

we find that, as an owner of property in Tall Timbers, Section Two, St. John "had some obligation to exercise reasonable diligence in protecting [her] interests" (quoting HECI Exploration Company v. Neel, 982 S.W.2d 881 (Tex. 1998)). The record evidence indicates the mobile home was present in the Girshes' back yard openly, and there is no evidence of the use of artificial devices or methods to camouflage or hide it. St. John's request for application of the discovery rule would require us to hold a full-size mobile home's presence on a residential lot in violation of a restrictive covenant, with said lot located in a highly populated subdivision, is a category of injury inherently undiscoverable even with the exercise of reasonable diligence, because of the presence of indigenous flora spontaneously growing nearby. A decision by us favorable to St. John would mean that she had established that the category of reasonably diligent property owners would not discover the existence of a full-size mobile home on a residential lot in the midst of a populated subdivision during the four-year limitations period.2

And so it went. The Girshes won the appeal and St. John, as well as all vigilant homeowners and community associations, was taught a valuable lesson. When you see a violation of the restrictive covenants in your subdivision, take action now rather than later. Sure, all cases won't deal with a 12' x 46' mobile home resting in a neighbor's backyard, but the point is to take notice of the condition of property, open your eyes to deed restriction violations, and solicit input and feedback from your membership (who most often know more about the alleged violations occurring at any given time than the association.)

The statute of limitations for enforcing a deed restriction violation is generally four years, which is generous, compared to other certain causes of action. Don't get caught in the "limitations trap" as detailed in the case above and be proactive in your association's deed restriction enforcement program. Deed restriction enforcement not only protects homeowner value, but it also promotes the community aesthetic while preserving an overall balance between individual homeowner expression and collective neighborhood beautification.

*Special thanks to the Community Associations Institute Law Reporter July 2007 edition for reporting this case in its monthly newsletter.

1 See Girsh v. St. John, 218 S.W.3d 921 (Tex. App. - Beaumont 2007).
2 Girsh, 218 S.W.3d at 935-36.

Full post as published by a View from the property line on August 21, 2007 (boomark / email).

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