How to Amend, Expire, or Invalidate Covenants?

[skippee]

Georgia

We bought a home on 2 acres on a busy road with plans to fence the perimeter. Elderly seller did not disclose covenants, but when we started the fence the neighbor brought us a copy of the covenants and said he would sue us. Covenants state no front fences.

I understand that the covenants run with the land, even if we weren't aware of them when we bought. I'm looking for a way to change/invalidate them.

1. The covenants themselves don't contain language to change them (except between 1995-1997 when the developer was still working.) A lawyer I contacted said we could change them with a majority vote from the 8 homeowners. Does this sound legit? I don't want to do it and then get sued anyway.

2. The covenants state that they run with the land for 25 years, then can be renewed in 10 year increments. We are at the end of year 19. Georgia case law Title 44, Chapter 5, Section 60 says that covenants can run for a max of 20 year in subdivisions with 15+ homes. What happens to subdivisions with fewer than 15 homes?

3. The neighbor who says he will sue us is violating at least 4 of the covenants. Can he legally try to enforce a particular covenant on us when he is breaking several of them?

4. When the neighborhood started in 1995 the road it is on wasn't very busy. The area was mostly farmland and the nearest store was the next town over. Now 100+ cars fly by at 55 miles an hour. Is it possible that forbidding us from putting up a front fence isn't legal from a safety standpoint?

5. Would a gate be considered a fence? The covenant specifically states, "No fences of any kind forward of the back edge of the home." Is a stand-alone gate a separate beast than a fence? With a gate at least I wouldn't need to park my car across my driveway by the mailbox so that my kids could safely ride their bikes.

Thanks!

 

[154NH773]

1. The covenants themselves don't contain language to change them (except between 1995-1997 when the developer was still working.) A lawyer I contacted said we could change them with a majority vote from the 8 homeowners. Does this sound legit? I don't want to do it and then get sued anyway.

I will defer to the local lawyer, since I'm not a lawyer, but it may depend on the type of covenant. The laws you cited seem to deal with sub-division covenants, but it's possible that law doesn't apply. There are some types of covenants that are perpetual, and I don't know the circumstances of your particular fence covenant, nor have I researched your local laws. Simply voting the covenants out is not the whole process, as you would probably have to file deeds with the registry rescinding the covenants. You will need a lawyer to make sure you do everything correctly.

2. The covenants state that they run with the land for 25 years, then can be renewed in 10 year increments. We are at the end of year 19. Georgia case law Title 44, Chapter 5, Section 60 says that covenants can run for a max of 20 year in subdivisions with 15+ homes. What happens to subdivisions with fewer than 15 homes?

The answer is unclear since your sub-division doesn't fit the circumstances. You may have to research caselaw.

3. The neighbor who says he will sue us is violating at least 4 of the covenants. Can he legally try to enforce a particular covenant on us when he is breaking several of them?

Yes

4. When the neighborhood started in 1995 the road it is on wasn't very busy. The area was mostly farmland and the nearest store was the next town over. Now 100+ cars fly by at 55 miles an hour. Is it possible that forbidding us from putting up a front fence isn't legal from a safety standpoint?

You might make such a case in a court of law, but it would be up to a judge, and I wouldn't count on it.

5. Would a gate be considered a fence? The covenant specifically states, "No fences of any kind forward of the back edge of the home." Is a stand-alone gate a separate beast than a fence? With a gate at least I wouldn't need to park my car across my driveway by the mailbox so that my kids could safely ride their bikes.

Without legal definitions in your state, I would say that a gate is a fence. Once again, it may depend on caselaw. Look up legal definitions or simple dictionary definitions.

 

[LdiJ]

3. The neighbor who says he will sue us is violating at least 4 of the covenants. Can he legally try to enforce a particular covenant on us when he is breaking several of them?

I would be having a frank but civil discussion with the neighbor about the covenants that he is breaking...and make it clear that if he is going to hold you to the covenants that you are going to hold him to the covenants as well.

I also do not think that a simple gate across your driveway is equal to a fence.

Some decorative landscaping or a decorative wall might be an option instead of a fence. Is your primary purpose to keep your children and animals in, or to deter/hinder a car going off the road from going too far onto your property?

 

[154NH773]

I did read some GA caselaw that says that if a local zoning ordinance was not in effect at the time the covenant (25 year expiration) was written, the 20 years would be counted from the date that an ordinance went into effect.

I hold to my belief that a freestanding gate, when closed, is a fence. I couldn't find any applicable caselaw in a quick search.

 

[FarmerJ]

Before you speak to the neighbor who is not following the rules them self do take pictures if its all things that are out side /exterior violations then get them printed with the date on them too then speak with the neighbor so this way you also have proof.

 

[skippee]

I will defer to the local lawyer, since I'm not a lawyer, but it may depend on the type of covenant. The laws you cited seem to deal with sub-division covenants, but it's possible that law doesn't apply. There are some types of covenants that are perpetual, and I don't know the circumstances of your particular fence covenant, nor have I researched your local laws. Simply voting the covenants out is not the whole process, as you would probably have to file deeds with the registry rescinding the covenants. You will need a lawyer to make sure you do everything correctly.



The answer is unclear since your sub-division doesn't fit the circumstances. You may have to research caselaw.



Yes



You might make such a case in a court of law, but it would be up to a judge, and I wouldn't count on it.



Without legal definitions in your state, I would say that a gate is a fence. Once again, it may depend on caselaw. Look up legal definitions or simple dictionary definitions.

Thank you.

We definitely will use a lawyer if the voting holds true to file with the county. But I do get different answers from different lawyers and then get scared to do anything at all. I'll see if I can find legal definitions somewhere. Is that something I can Google (I guess I'll see after I post this) or would I need to find a legal library somewhere?

 

[skippee]

I would be having a frank but civil discussion with the neighbor about the covenants that he is breaking...and make it clear that if he is going to hold you to the covenants that you are going to hold him to the covenants as well.

I also do not think that a simple gate across your driveway is equal to a fence.

Some decorative landscaping or a decorative wall might be an option instead of a fence. Is your primary purpose to keep your children and animals in, or to deter/hinder a car going off the road from going too far onto your property?

If I were to hold him to the covenants, I would need to take him to court, correct? I'm afraid he isn't going to speak civilly with me. He's screamed at us from his yard. I'm honestly pretty scared of him. But I could put together a list and try to catch him or his wife at the mailbox one day.

We have purchased 80 trees to plant between him and us. I've also purchased trees to plant across the front by the road, and started to pile brush from the yard out there to help my kids understand where to stop. The primary purpose of the fence would be to keep my kids in and safe. They are young and boys and even though I supervise them out there, they get carried away with what they are playing and forget the busy road.

 

[skippee]

I did read some GA caselaw that says that if a local zoning ordinance was not in effect at the time the covenant (25 year expiration) was written, the 20 years would be counted from the date that an ordinance went into effect.

I hold to my belief that a freestanding gate, when closed, is a fence. I couldn't find any applicable caselaw in a quick search.

That's what I read as well, but the one I found also said in communities with 15+ homes and ours just has 8. Did the case law you saw not have a number of homes? I suppose this is part of what I need a GA lawyer to help me with.

If a gate would be a fence when closed, maybe I could just leave it open most of the time? I am tempted to put up a temporary plastic safety fence inside of my new trees so that if he sues me I won't be out much money and can just pull it down, but he'll have to pony up in legal costs.

 

[skippee]

Before you speak to the neighbor who is not following the rules them self do take pictures if its all things that are out side /exterior violations then get them printed with the date on them too then speak with the neighbor so this way you also have proof.

I've definitely been doing this. Thank you!

 

[154NH773]

I did not find anything about a sub-division of less than 15 homes.

You may have misunderstood my citation of caselaw (a court decision establishing precedence). The 20 years referred to in the statute (Georgia Title 44, Chapter 5, Section 60 is NOT CASELAW, it is LAW) only applies AFTER a local ordinance is enacted. So, you have to determine when a local zoning ordinance was enacted.

You really need a GA lawyer, and yes, it is hard to find good lawyers. If lawyers differ in their opinions, make them explain to you, citing law and caselaw, why they have that opinion. Go with your gut.

 

[skippee]

I did not find anything about a sub-division of less than 15 homes.

You may have misunderstood my citation of caselaw (a court decision establishing precedence). The 20 years referred to in the statute (Georgia Title 44, Chapter 5, Section 60 is NOT CASELAW, it is LAW) only applies AFTER a local ordinance is enacted. So, you have to determine when a local zoning ordinance was enacted.

You really need a GA lawyer, and yes, it is hard to find good lawyers. If lawyers differ in their opinions, make them explain to you, citing law and caselaw, why they have that opinion. Go with your gut.

Oh I see now. Thank you for clarifying.