Waiver of Covenant Enforcement

Association boards must be vigilant to consistently enforce the association’s CCRs and bylaws.  Inconsistency or looking the other way can create a defense of waiver or estoppel for the errant homeowner to use against the association in court.  However, in Kneale v. Bonds 452 S.E.2d 840 (S.C. Ct. App. 1994), the South Carolina Court of Appeals held that [a] party’s waiver of the right to object to a minor violation of a
covenant does not result in waiver of his right to object to a
subsequent and more substantial violation.”
 
In the Kneale case,  the Bonds submitted an application to extend their condo by 2,200 feet, which would extend the unit into the common elements of the Condo Association.  The Board approved the application, but several property owners brought suit against the Bonds seeking a temporary restraining order and to enjoin them from further construction.  In return, the Bonds filed an injunction against the other property owners seeking to have them remove additions that had previously been made to their condo units.  Although the master deed required board approval and a majority of property owners’ assent to make alterations or improvements to the common elements, since inception the association’s policy was to only get approval from the board.
The trial court determined that both the Bonds’ improvements and the other property owners’ improvements were approved by the Board, albeit some impliedly.  In addition, the court denied both parties’ requests for injunctive relief and dissolved the initial temporary restraining order granted against the Bonds.
On appeal, the court looked at the Horizontal Property Act and stated that the bylaws and covenants should be strictly enforced.  Included in the right to enforce, is the ability to seek an injunction requiring the property owner to repair or remove improvements made in violation of the association’s restrictive covenants.
In deciding whether or not to issue an injunction, the court will balance the equities involved to ensure that great detriment will not fall on one party with only minor benefit to the other.  The court held that although there had been alterations made in violations of the covenants in the past, they were non-structural and were made to the limited common areas.  In contrast, the Bonds’ vast improvements were structural in nature and encroached on general common areas of the association.
Property owner acquiescence toward the minor alterations in violation of the covenants did not equate to an overall waiver of the right to enforce the covenants.  The court issued an injunction against the Bonds requiring them to remove the improvements, and also found that the Bonds’ action against the other property owners was barred by the doctrine of laches because they sat on this right for such an extended period of time.
This site and any information contained herein is for informational purposes only and should not be construed as legal advice.  Seek a competent attorney for advice on any legal matter.

Authors: Ryan McCabe

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