Is the protective covenant of a Homeowners Association enforceable during a period of time when no members are paying dues?

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Is the protective covenant of a Homeowners Association enforceable during a period of time when no members are paying dues?

When our neighborhood was under development (a period of 4 years or so), the HOA had no officers and no dues were being collected. During that time, some owners planted shrubbery, etc., in areas prohibited by the HOA protective covenant. Now, the HOA wants to enforce the covenant although the developer never enforced it and despite the fact that the HOA has been collecting dues and has had officers for the last 5 years. Can the HOA do this?

Asked on April 20, 2011 under Real Estate Law, Alabama

Answers:

MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Protective covenants are usually recorded and are still applicable and valid unless and until a court orders otherwise or deeds are recorded eliminating the protective covenant. In terms of requiring the shrubbery removed, you have to determine if the protective covenant was something recorded in the registry of deeds and part of every parcel that is part of the Homeowners' Association or if this is strictly a bylaws by the HOA. So, in terms of the restrictive covenant, despite no fees and despite the lack of officers enforcing the restriction or prohibition, if indeed it is recorded, then yes it is enforceable by the HOA to force these individuals to remove the shrubbery.


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