A Note about Homeowner Associations by Melanie E. Davis

A large part of my practice involves representing homeowners’ associations and condominium owners’ associations. One question that I am frequently asked is whether homeowners’ associations actually have legal authority to enforce deed Restrictions such as, for example, a prohibition on clothes lines or a pig pen in a residential neighborhood.

The answer to the question is generally “yes”. However, there are a few caveats. The deed Restrictions must expressly state that the association has the power and authority to enforce the Restrictions. If the Restrictions do not expressly provide the association with this power, the association cannot enforce the Restrictions, and the Restrictions may only be enforced by individual property owners also bound by the same Restrictions.

Payment of attorney’s fees by the person who violated the Restrictions to either the association or an individual owner who sued to require compliance is only going to be part of a judgment from a court if language to that effect is stated in the Restrictions. The court will not order that one party owes the other party’s attorney’s fees because it is “fair” or for any other similar reason or just because one party was victorious in the lawsuit (“The American Rule”).

Restrictions would in most cases be enforced by Order of the court as long as a clear violation is proven. A neighborhood can have a problem with enforcement if a certain Restriction has been “waived” by the association and/or the neighborhood by not enforcing the Restriction against other owners in the past in similar circumstances. For example, if five owners in a neighborhood of twenty lots have pig pens and a clothes lines, and then a sixth owner moves in and puts in a pig pen and a clothes line, the Association can’t block that sixth owner from having the clothes line and pig pen. The Restriction has basically been waived as to these issues. It would be arbitrary to enforce the Restriction on one property and not the others. If you sit and allow violations to occur across multiple properties, you are in effect “waiving” the Restriction and potentially make it no longer enforceable.

Another interesting factor to note is that in order for the association to sue for a Restriction violation, the association has to hire an attorney. The association cannot proceed in court pro se or without a lawyer (like an individual can) because that constitutes the unauthorized practice of law in Tennessee.

Finally, Restrictions have to be enforced in Chancery Court or a court with Chancery jurisdiction in Tennessee. You can’t just go to General Sessions Court, which is small claims court, in order to enforce Restrictions. That lower level court does not have the legal authority to issue the type of relief necessary to enforce Restrictions, which is injunctive relief or a court ordering somebody to do something or not do something.

So, in sum, Restrictions can be and routinely are enforced by associations or owners bound by the Restrictions, but there are legal issues to consider. If all of the stars line up, an association usually can ultimately get a court Order requiring an owner to comply with deed Restrictions and probably require the offending owner to pay the Association’s attorney’s fees incurred in bring the suit. If that person then fails to comply with the court Order, he or she can go to jail or face fines or other punishment from the court because that is a contempt of court.

Hopefully, the situation in your neighborhood doesn’t get that far where a neighbor is being put in jail over a deed Restriction, but deed Restrictions do have legal teeth behind them!

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