Authored by Ryan Futrell and David Wilson
I am often asked to give an opinion on whether a particular restrictive covenant is enforceable. In most cases the answer is “yes.” Occasionally, however, there are factors that may make the restriction unenforceable. In a recent case from South Dakota, homeowners learned the hard way that their failure to enforce their restrictive covenants in the past prevented them from enforcing them when it mattered most.
Note: Although this case is not legally binding in North or South Carolina, it is instructive and teaches an important lesson that communities in North Carolina and South Carolina should heed.
In Hood v. Straatmeyer, No. 30180 (S.D. Mar. 5, 2025), the South Dakota Supreme Court affirmed that failure to consistently enforce restrictive covenants can result in those covenants becoming legally unenforceable.
The Shadowland Ranch subdivision in Meade County, South Dakota had been subject to restrictive covenants since 1976. These covenants prohibited the subdivision of lots and limited homes to one single-family residence with a maximum three-car garage.
In 2020, Lot 6 was subdivided into two parcels—Lot 6A and Lot 6B—with city approval. The Straatmeyers purchased Lot 6B and began constructing a home with a three-car garage. However, upon commencement of construction, several neighbors objected, claiming the subdivision violated the longstanding covenants.
Eighteen neighbors filed suit, asking the court to declare the covenants valid, rule the subdivision and construction unlawful, and order the removal of the Straatmeyers’ home. In response, the Straatmeyers countered that the covenants were no longer enforceable due to years of selective enforcement and widespread violations.
The trial court examined the history of enforcement (or lack thereof) and found that numerous homeowners within the subdivision had violated various covenant provisions, such as constructing larger garages and building too close to property lines. Importantly, none of these violations had previously been challenged or enforced.
The trial court held that allowing neighbors to suddenly enforce the covenants against the Straatmeyers—after years of ignoring similar violations—would be inequitable. As a result, it declared the covenants null and void, absolving the Straatmeyers of any wrongdoing.
The neighbors appealed. On appeal, the South Dakota Supreme Court agreed with the trial court, finding that restrictive covenants can become unenforceable through waiver or acquiescence.
The Court found that enforcing the covenants now, after the unbroken pattern of violations and the complete absence of enforcement efforts over nearly five decades, would be inequitable.
This is a case from South Dakota—why should we care?
Even though this case is from the far away land of South Dakota, it underscores a critical lesson—if a homeowners association wants restrictive covenants to remain enforceable, they must be actively and consistently enforced. Selective enforcement (enforcing some restrictions but not others) and acquiescence (turning a blind eye to long-standing violations), can result in the loss of the legal right to enforce them at all.
To preserve the integrity of community rules, communities should:
- Regularly monitor compliance with covenants.
- Address violations promptly and uniformly.
- Maintain clear records of enforcement actions.
- Avoid selective or sporadic enforcement that could appear arbitrary or unfair.
Restrictive covenants are only as strong as the commitment to uphold them. Without consistent enforcement, they risk fading into irrelevance—and, at least in South Dakota, invalidity.
If you or your community has questions about enforcement of restrictive covenants, contact a North Carolina or South Carolina attorney in any of our offices.