If the HOA in my neighborhood failed to enforce a street lamp covenant for 11 years, can they do so now?

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If the HOA in my neighborhood failed to enforce a street lamp covenant for 11 years, can they do so now?

They have threatened legal action if it’s not fixed.

Asked on May 13, 2011 under Real Estate Law, Tennessee

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

They probably can enforce the covenant. The law does not generally make a failure to previously enforce a covenant, obligation, term, condition, etc. a waiver of the right to enforce it in the future. That is, just because someone did not insist on their rights previously does not mean they cannot insist on them now. Therefore, if there is indeed a covenant in the HOA agreement, etc., which allows them to do this, they can in fact do it, notwithstanding the fact that they choose--or even failed--to do so for many years previously. If they are discriminating against you, on the basis of  a protected category (e.g. race, religion, age over 40, sex, disability) in terms of selective enforcement, you may have a cause of action.


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