Can a land developer change covenants without letting the homeowner know?

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Can a land developer change covenants without letting the homeowner know?

He is trying to tell us now that we can’t have 6 ft vinyl privacy fence. This is what our covenants say: “No fence shall be constructed to extend beyond the front of the primary structure facing the front of the lot (that side of the lot facing a street) except on corner lots. No such fence shall exceed 6.5 feet in height. Both sides of an Developer-installed fence that is paid for by the Developer and located on a lot shall be maintained by the homeowner. The surface of these fences must always remain exactly as built (color cannot be altered). All homeowner-installed fences must be approved by Developer and conform to City of Fargo Land Development Code.”

Asked on August 29, 2012 under Real Estate Law, North Dakota

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

You hail from North Dakota, correct?  It is my understanding as established through case law in your state that a restrictive covenant - while not favored - will be enforced so long as they have been clearly established and are not contrary to public policy.  Now the court has also held that covenants will be interpreted using the same rules that govern a contract.  While I thank you for writing in with the portion that you believe applies, the entire section should be read by an attorney to see if the fact of your case will give rise to an issue with your fence.  State law may dictate the issue as well.  Good luck.  


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