The Burr family of Bossier, Louisiana is being sued by their Homeowner’s Association , over a three foot by six foot banner, depicting a picture of their 20 year old son, with the words; “Our son defends our freedom.” The Burrs erected the sign in January when their son, a lance corporal with the U.S. Marines, was deployed to Afghanistan.
In February, the Burrs received notice from the HOA that the sign must come down, claiming it was not in compliance with the covenants put in place by the original developer of the neighborhood.
In the case above, the Burrs attorneys are arguing that the covenants, upon which the suit is based, are not enforced consistently, and further that the removal would infringe upon the Burrs legal rights.
Due to well established rights of HOAs to enforce the covenants concerning the properties which are a part of them, the covenant at hand has to do with negative affirmations, such as no signs larger than two square feet, or of a color other than black and white shall be displayed on a home’s front yard.
According to the Third Restatement, negative covenants, jut like their affirmative counterparts , these covenants are initially unobjectionable, unless they are voidable for some other reason, such as illegality, unconstitutionality , or for being against public policy .
In addition to invalidation for illegality, unconstitutionality, or public policy, if covenant language is unclear or ambiguous, the court will interpret in favor of free enjoyment of the property without restrictions on use.
Termination can also occur via expiration, release, abandonment, merger, estoppel, prescription, condemnation, consent of all of the parties, or on a case by case basis, a court determined sufficient change of circumstance.
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