How Long is too Long?

Property owner associations often spend a considerable amount of time trying to get their members to comply with their obligations (both assessment delinquencies and deed violations) before deciding to go to court. This approach is well-advised for several reasons. Often litigation is unnecessary – if told that they are not in compliance, many people will cooperate voluntarily. There is also the expense involved, not to mention the stress and inconvenience to everyone. There is also the question of "getting around to it" on both sides. All these make sense, and justify not taking legal action. However, if the delay is too long, the right to complain is lost.

Under Texas law, the statute of limitations for enforcement of a lien, and for deed violations, is generally four years. This means that the party having standing (i.e., a legal right to make a complaint) must file suit no later than four years after the right to sue came into existence. Sending a letter by the deadline doe not get it. You have to file a civil lawsuit. Once you do, there is an additional requirement to use due diligence in the issuance and service of process. In other words, you have to sue, and then make sure the suit gets delivered to the party that is the subject of the complaint. Note there are several exceptions to the statute of limitations that might apply (for example, a promise to pay an undisputed amount, temporary absence of a resident defendant from the state, or bankruptcy), but the best course is to meet the four year deadline. If you miss it, the person sued may have a valid defense, which could mean that they do not have to comply because the complaint was lodged too late. This is supposed to helps prevent ancient disputes from being raised after memories fade and proof evaporates, and to give some certainty to long-established events.

Another timing issue is the defense of "laches" (you can call it "unfair delay" if you like). If you knowingly fail to assert your rights when you could, allowing someone else to change their position to their detriment, you may be precluded from prevailing in a suit later. Therefore, if you see an addition to a house being built, do not wait until the last of the shingles are on before you let the person building it know it is a violation because there was no approval from the required authority. Take action as soon as you see it being done, so that material and labor is not wasted. You have to be assertive when it will prevent waste, or not at all. Laches is different from limitations, and will usually involve a shorter time-frame. The amount of waiting time that might be an "unfair delay" is fact-specific.

These are two of the more common defenses that confront property owner associations. For specific advice on these defenses as applied to a specific case, or for other potential legal questions, consult a qualified attorney of your choosing.

By Tom Newton, Jr., NRC Board Member