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Invalidating a restrictive covenant

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Proejo

Member
What is the name of your state? TX

Our HOA's CC&Rs originally stated that fence heights were not set. Then it was later amended to be 6'. This was prior to my moving in. The neighbor behind me has an 8' fence. In fact, there are many homes that have 8' fences. I changed my fence to match his fence height. Later, a new amendment was made stating that some properties now have to have 8' fences and some others have to remain at 6'. For those homes that are already at 8', the homeowner could seek an approval from the architectural review committee. Here's where the dispute lies:

Those persons who are "in tight" with the board members and who already have 8' fences received approvals. Those , like me, who were not "in tight" with the board did not. It is an uneven playing field. To get around this, how difficult would it be to seek a declaratory judgment and legal costs to have this entire rule invalidated based upon the uneven way the restriction is being applied?
 


divgradcurl

Senior Member
To get around this, how difficult would it be to seek a declaratory judgment and legal costs to have this entire rule invalidated based upon the uneven way the restriction is being applied?
Talk to a local attorney who had experience working in your jurisdiction. In many jurisdiction, courts are very hesitant to override a homeowner's association, only a local attorney can tell you whether or not that is the case in your area.

Typically attorney's fees are awarded only when there is some exceptional behavior on the part of the defendant. Attorney's fees are not routinely awarded just because you win a case. Again, a local attorney can review all of the facts of your situation and advise you accordingly.
 

Cedrus

Member
Why not force a vote on this right now? Usually, if you can circulate a letter to the BOD that contains your concerns, with enough signatures, you can get a emergency HOA meeting and hash this out.

Maybe the glare of opening this up to all the member's scrutiny will force the BOD to correct this situation.

If it comes to court later on, you have something, in writing, to use.
 

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