Time Limit to Enforce Deed Restrictions

[saroman]

We own a house in a Texas rural subdivision of about a dozen 5 to 10 acre lots. My wife is a certified fitness trainer. Although there is a deed restriction on home businesses, over two years ago we discussed with neighbors our desire to construct a fitness studio for her clients on the property, acknowledging the deed restriction. We assured them that the facility would be discreetly placed on the property and match the style of the main house, which it does. None of the neighbors protested or filed any action to prevent construction. We proceeded and the studio was built. It has been in use for about two years with no complaints. The client traffic load ranges from an average of four cars to a maximum of seven cars per day, five days a week.

Today we received a certified letter from an attorney representing several neighbors in the subdivision threatening a lawsuit if the business was not shut down. No neighbors discussed the matter with us previously.

Ironically, one of the complainants was a subcontractor in the construction of the facility. Another was a client after the facility was built.

Had the neighbors objected in the first place, we never would have made the sizeable investment involved. I interpret their lack of protest as de facto approval to proceed with the plan, especially since no action has been taken for over two years.

My question is: can deed restrictions be imposed long after de facto approval to circumvent them has been granted, or can neighborhood associations arbitrarily act on these restrictions at will, regardless of previous positions?

Needless to say, the situation is causing both physical and mental anguish for the whole family.

Thanks.

 

[HomeGuru]

The answer is yes. You see you did not follow the restrictions or the proper procedure to obtain variance approval.

 

[saroman]

Restrictions

I guess I wasn't clear. We didn't proceed until after the neighbors were consulted and no objections were made. Nor were any made for over two years after. We have no zoning laws and I presume the deed restrictions take their place in this instance. When the deed restrictions were discussed, there was no organized home owners association - just a collection of neighbors. In fact, in the 18 years I lived on the street there was never once anything resembling a home owners association. No bylaws, procedures or working model. It just seems rather odd that when they had every opportunity to squelch the project at the outset, they chose not to. Presumably everyone, even neighbors, are responsible for their decisions and I assume it applies to their decision to waive the restriction in this instance. Since nothing has changed in the interim, I see no basis for that waiver to be removed.

 

[HomeGuru]

My post stands. Since there is a deed restriction recorded on title, you needed to get the restriction waived in writing by the proper entity that could legally change or waive the restriction. In this case, since there is no HOA, the neighbors do not have that authority. So even if you got 100% of the neighbors approval, you would still be in violation of the deed restriction.

So your approach was incorrect. You should have sought legal counsel instead of representing yourself as you seem to still be doing.