Breaking restrictive covenants - Posted by Kim Christie

Posted by Joe (NoVA) on February 06, 2002 at 09:42:37:


Breaking restrictive covenants - Posted by Kim Christie

Posted by Kim Christie on February 04, 2002 at 15:03:23:

I live in a rural area on land that was once part of a large estate. The developer that subdivided and sold these lots in 1988 created “frontage lots” and several lots that have only a driveway as road frontage. I own both a front parcel and a flag parcel (total of 14 acres +/-). The front parcels were sold as “subdivision” lots with restrictive covenants, one of which prohibited mobile homes. This applies to only one side of the road, and to only about half of the lots on that side. Some now have mobile homes on them, and I am interested in putting an expensive triple-wide prefab home on my front lot whose cost/value is higher than that of most of the “stick-built” houses on this road. On what grounds might I be able to ask the court to lift this restriction as it has been widely ignored already, and these homes do now exist here? Also, do I need an attorney to file or prepare this motion?
Can I find sample motions online to use as a guide?



Re: Breaking restrictive covenants - Posted by Joe(NoVA)

Posted by Joe(NoVA) on February 04, 2002 at 17:47:34:

If anyone with a mobile home on their land in violation of the covenant sues you for having a mobile home your defense would be “unclean hands”–“you did it so you can’t stop me from doing it.”

If there are parcels that were part of the original plan without the mobile home restriction and THEY try to sue you, the defense would be acquiescence/waiver–“you didn’t stop my neighbors from doing it so now you can’t stop me either.”

I’m not sure if you can file some kind of “declaratory judgment” to ensure that the covenant is lifted; I’d recommend asking an attorney licensed in your state whether such a suit is viable or whether you should just raise a defense if anyone tries to hold the covenant against you. Either way it seems you have a strong case since your neighbors are getting away with it.

Re: Breaking restrictive covenants - Posted by Kim

Posted by Kim on February 06, 2002 at 09:32:26:

Thanks so much for the information. I believe you hit this squarely on the head with the acquiescence/waiver strategy. I am meeting with an attorney this afternoon to pursue this avenue and decide if I should take a proactive posture to change or vary the covenant, or if I should just wait to see if anyone actually tries to challenge it, and then take the waiver defense. Thanks again! If the outcome is worth seeing, I will post it here for future reference.