How Do We Enforce Deed Restrictions Without an HOA?

Enforcing deed restrictions often requires a formal lawsuit.
Enforcing deed restrictions often requires a formal lawsuit. (Image: Jupiterimages/ Images)

A homeowners association (HOA) is a type of corporation that is created to manage a planned unit development. The homeowners association typically has the authority to enforce deed restrictions against property owners within that development. However, when a homeowners association does not exist or is unavailable, the individual homeowners can jointly or individually file a lawsuit to enforce the deed restrictions.

Review the deed restrictions with a fine-toothed comb. Deed restrictions create a contract between the various property owners who are parties to the deed restrictions, so the terms of that contract will govern your rights to enforce the restrictions against another property owner.

Identify any necessary lawsuit parties. The deed restrictions may expressly require a collective action by all the homeowners within the development, or they may allow for a lawsuit filed by a single homeowner.

Determine your legal theories. Most likely you will file a simple breach of contract lawsuit, but if you are creative you may also be able to bring equitable claims against the violating property owner.

Comply with any noticing requirements outlined in the applicable deed restrictions. It is common for deed restrictions to require the non-breaching homeowners to give notice to the breaching homeowner before filing a lawsuit.

File a complaint against the breaching property owner. A complaint is a formal legal document that initiates a lawsuit against the defendant named in the complaint.

Tips & Warnings

  • Before filing a lawsuit on your own, try to work with other property owners in your development. The more plaintiffs you can name in the lawsuit, the better your odds, because a court is not likely to issue a ruling against a majority of property owners who are trying to enforce deed restrictions.
  • Drafting a complaint can be a complicated process, so if you have reached this step, you may consider consulting with a local real estate attorney who is licensed to practice law in your state.

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  • "Modern Real Estate Practice"; Fillmore W. Galaty, et al.; 2007
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