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Litigating issues relating to restrictive covenants

7/10/2016 | Real Estate Blog

Many residential neighborhoods here in Pennsylvania and elsewhere have homeowners’ associations (HOA). The function of these associations is to enforce the covenants, conditions and restrictions that everyone who owns property within the neighborhood is given. When disputes arise regarding the restrictive covenants that cannot be resolved outside a courtroom, litigation might be necessary.

When a resident violates a covenant, condition or restriction, the HOA issues a notice to the resident that requires them to cure the violation. After the required number of warnings is given without the issue being resolved, the matter could be taken to the next level. Alternatively, the resident can request a variance for the particular issue. For instance, if a homeowner or a member of the family is visually impaired and requires outdoor lighting that violates a covenant, an exception could be made to the restrictive covenant regarding outdoor lighting. This often includes a hearing in front of the members of the HOA and the matter is then put to a vote.

If the parties are unable to come to a mutually satisfactory agreement regarding the violation or request for exception, litigation could be the next step. In order to prevail, the HOA will first need to establish that a contract between the parties existed. It will need to be shown that the resident agreed to abide by the covenants, conditions and restrictions of the neighborhood. Furthermore, it must be proved that the property owner received some sort of consideration for his or her agreement.

Litigating restrictive covenants can be complex. It would be beneficial to understand the rights and responsibilities of both sides prior to filing a lawsuit. In addition, there could be other, less time-consuming and expensive methods of resolving the dispute. If the parties are amenable, mediation or arbitration might be a better alternative than taking the dispute to a Pennsylvania civil court.