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With 100 degree temperatures hitting many parts of the Midwest, residents across the nation are visiting their local subdivision or condominium pool to stay cool. While subdivision and condominium pools are great to have, they typically are managed by a group of individuals who oversee the maintenance and general upkeep of the pool and all of the other community amenities. Generally, after an initial period of developer control, this governing group or board is elected by the homeowners to run the association. The association may be tasked with maintaining not only the pool, but also sidewalks, streets, buildings, tennis courts and common areas, as well as handling miscellaneous tasks confronting the subdivision.

Homeowner associations take multiple forms including non-profit corporations, unincorporated associations and limited liability companies. The selection of the organizational form for the association is frequently set forth in the subdivision indenture or condominium declaration. While trusteeships and unincorporated associations are sometimes used, non-profit corporations offer advantages such as insulating members and officers from association liabilities.

If the subdivision or condominium association is a non-profit corporation (and such form of entity is the overwhelming choice of associations), the association is governed by three distinct sources: (1) the subdivision indenture or condominium declaration; (2) the homeowners’ association’s articles of incorporation and by-laws; and (3) Missouri Revised Statute Chapter 355. Whenever questions arise with the association or property within the jurisdiction of the association, these three sources should be reviewed in detail to inform the property owner and governing board of their respective rights.

Outside of the pool and other common areas, property owners are also typically interested in restrictions placed on the use of their own property. These restrictions are typically outlined in the subdivision indenture or condominium declaration as “restrictive covenants.” Restrictive covenants are imposed upon the owners’ property to limit usage with the intended purpose of preserving property values and fostering harmony among neighbors within the subdivision or condominium. These restrictive covenants should be clear in order to facilitate the homeowners’ understanding of how the property can be used and what limits are placed on that use.

Unfortunately, over time, restrictive covenants can become outdated or ambiguous, causing headaches for both the homeowners as well as the association. While there are multiple means of resolving ambiguities, some association by-laws or indentures anticipate future problems and provide possible means of modifying or removing restrictive covenants. Absent a contrary provision, restrictive covenants in the indenture or declaration cannot be amended without the consent of all property owners who are subject to the restriction. If an individual wishing to challenge the restriction cannot obtain unanimous consent of the owners and no other means of modifying the restrictions exists in the by-laws, an individual can file a lawsuit to have a court review the restrictive covenants.

Courts in Missouri have generally established principles pertaining to the interpretation and construction of restrictive covenants. First, restrictive covenants are narrowly construed and are not extended by implication to include anything not clearly expressed in them. Second, if there is substantial doubt or ambiguity within the restrictions, any such ambiguity should be resolved against the restriction and in favor of free use of the property. Third, the rules governing construction of contracts are the same as those applicable to any restrictive covenant, where the court will attempt to follow the clear intention of the individual who created the restrictive covenant. In other words, the courts will attempt to understand and interpret the restrictive covenants based on the intentions of the individual who originally placed the restrictive covenant upon the land. If the courts cannot recognize the intentions of the individual who created the restriction, courts will favor free use of the property and will strike down the restriction.

While some associations are diligent in their efforts to uphold the indenture or declaration, lapses do happen, which can create conflicts within the community. These lapses are understandable as most, if not all, board members are volunteers who do not have the time to devote to daily monitoring of the association’s property and affairs. Associations that do not meet regularly, or even annually, create problems not just for the association, but also for the enforcement of restrictive covenants against future property owners, which can cause real problems for the neighbors in the subdivision or condominiums.

One frequent argument when challenging restrictive covenants occurs when the association fails to abide by their own rules and does not consistently enforce restrictive covenants. In these types of cases, the challenging party typically argues that the association has either waived its right to enforce the restrictive covenants or has abandoned the restrictive covenants entirely. Some Missouri courts have held that “persistent” or “long unbroken times” where the homeowners association fails to enforce covenants may constitute waiver and abandonment, rendering the covenant unenforceable.

Other courts have, however, been less willing to allow homeowners to violate the restrictive covenants. One Missouri court required that a homeowner show an intention by the association to abandon the restrictive covenant before the court would allow for waiver or abandonment of the restrictive covenant. While the aforementioned cases appear to impose inconsistent standards, in general, it is clear that courts place a fairly high burden on individual homeowners who wish to challenge restrictive covenants.

Whether a restrictive covenant or some other issue that arises in a homeowners’ association, reference to the indenture or declaration, as well as the articles of incorporation and by-laws, is advised as your first source of dealing with the matter at hand. However, trying to interpret these various documents in harmony with each other can be difficult if not at times nearly impossible.