Owners should check covenants before adding improvements


July 07, 2002|By Jonathan Azrael

I received a letter from Mr. and Mrs. Rod Pratesi, who wrote that they are concerned about a fence that they constructed on their property in an Anne Arundel County subdivision.

The restrictive covenants they received at settlement did not prohibit fences, but stated that prior approval of the building or homeowners association (HOA) had to be obtained before any building, fence, wall or other structures were erected. The Pratesis did not get prior approval for their fence.

The HOA board has approved at least two other fences similar to the one erected by the Pratesis. More than 2 1/2 years after they constructed their fence, a new HOA board expressed concerns.

According to the board, "new," more restrictive covenants prohibit the Pratesis from erecting a fence within 50 feet of a public road that abuts their lot, unless the board grants written permission.

The homeowners want to know if they are bound by the "new" covenants and whether there "are any legal avenues to explore."

The Pratesis find themselves in a tight spot because they erected their fence without asking for required preapproval from the HOA.

I can't overemphasize the importance of reading and complying with restrictive covenants before commencing construction. Quite often, covenants require that a homeowners association must preapprove the construction of any improvement, including decks, fences, sheds, swimming pools or even kids' play equipment.

In other cases, these types of improvements are totally prohibited by restrictive covenants. Improvements constructed in violation of restrictive covenants are subject to court-ordered removal based on a complaint by the HOA or one or more of the residents of the subdivision.

When the HOA board has approved fences for other residents, as in this case, there may be no reasonable basis for the HOA to prohibit a lot owner from erecting a similar fence. Whether the HOA acts unreasonably or is stopped from enforcing a restrictive covenant is a question for the court to decide.

Do the "new" covenants apply to the Pratesis' lot? That depends on whether the covenants were recorded before the Pratesis took title to their lot.

If their deed was recorded before the "new" covenants were recorded, then they don't apply to the Pratesis' property. However, if the "new" covenants were on record before the Pratesis' deed, the restrictive covenants will apply and be binding on their lot.

A Maryland statute obligates the seller to provide the buyer with a copy of recorded covenants and restrictions affecting the property. A seller who fails to give the required disclosure will be liable for damages proximately caused by the omission of these material facts.

A legal action may not be able to enforce a liability under this law unless brought within one year after the facts constituting the cause of action have or should have been discovered. The Pratesis may have legal rights against the builder who sold them their home without discussing "new" covenants, but a legal action must be filed timely.

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