What do you do if you want a detached garage but your documents don’t allow it?
Plaintiffs sought to enjoin the construction of a detached garage in their association on the grounds that it was specifically prohibited by the declaration. However, the declaration provided a procedure for review of any proposed structure that would otherwise violate the declaration. That process required submission and approval in writing from the Trustee (think Architectural Control Committee or “ACC”). However, the Association had not had any ACC in place for approximately nine years. At trial the Plaintiffs and their witnesses testified that the purpose of the restriction was to preserve the open space in the association. In its defense, the Defendants (garage owners) and their witnesses testified about the many other violations of the declarations that were not being enforced and some violations that had been approved by the ACC when it existed.
The trial court found that the detached garage violated the declaration after finding that the review provision was impossible to follow because no ACC existed. The trial court then struck the review provision under the doctrine of impossibilities and rejected the defenses of waiver (because of no complaints while garage was being constructed), laches (because of the failure to replace the ACC) and unclean hands (because of the failure to prohibit other violations). Accordingly, the trial court ordered the garage removed. The Defendants appealed.
The appellate court in its decision listed the general rules relating to restrictive covenants, including that they “are not favored” and will not be enforced unless the covenant is “reasonable, clear, and definite.” In this case the appeals court found that because the ACC had allowed variances from the covenants in the past, the failure to have the committee denied the Defendant “access to the intended variance procedure” and therefore held in Defendant’s favor, allowing them to keep their garage.
- If you want your covenants to be enforced, you should always enforce them or amend them so that the items you don’t wish to enforce are no longer violations;
- Ignoring violations until one arises that you don’t want to ignore is not an effective enforcement strategy;
- If you had an ACC, but now don’t, re-establish your ACC, inspect your association and decide if there are any violations that need to be addressed;
- If you do re-establish an ACC make sure that you provide notice to all owners and future owners (when they buy) of its existence.