With restrictive covenants, it’s better to beg permission than ask forgiveness

The Court of Appeals has upheld enforcement of a restrictive covenant against a woman who opened a dog training and boarding business in a residential area. See Myers v. Armstrong (Feb. 5, 2014), opinion by Judge James Wechsler.

The moral of this story is that if you want to do something on your land that might violate a restrictive covenant, you’d better get permission from all your neighbors, or a court order allowing your activity, before you sink a lot of money into it.

The defendant, Armstrong, opened a dog training business on her property in 2000, added a dog boarding business in 2003, and built a 3,000-square foot metal building in 2009 for use in the business. After the building was completed, some neighbors sued to have the building removed. The trial court decided that the building violated the subdivision’s restrictive covenants.

On appeal, Armstrong argued that the all improvements required approval from the subdivision’s architectural control committee, but because the committee hadn’t operated since 1984, the restrictive covenants were unenforceable.

Judge Wechsler rejected this argument, holding that the covenants were binding on the landowners, and that in the absence of a committee, a court can provide an equitable solution. The lack of a committee didn’t give Armstrong a license to violate the covenants; if she wanted a decision on whether her building was proper, she could’ve sought it from a court.

This ruling seems entirely sensible to me. Restrictive covenants are property rights belonging to each landowner within a subdivision. An individual landowner may have bought his or her property after the architectural control committee lapsed, or may have had no power to keep the committee in operation without cooperation from others. That landowner, however, should not lose his or her property rights due to causes outside his or her control.

The opinion doesn’t make clear whether Armstrong will merely be required not to operate the dog boarding business in the building, or whether she will have to remove the building, but whatever the case, it seems that she will have to bear some significant expenses that possibly could have been avoided if she had obtained permission from her neighbors, or a court order, allowing her to construct the building before investing more resources.

 

 

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