Broken Windows and Broken Deed Restrictions
By W. Austin Barsalou, Barsalou & Associates, P.L.L.C
Imagine driving through an unfamiliar neighborhood, and turning onto a street to find cars on blocks, graffiti on houses, litter and garbage everywhere and broken windows in abandoned houses. Try to visualize this street scene and feel your reaction to it.
Your most immediate impression is not just that the street is unattractive and needs to be cleaned up. No, your first thought is that you are not safe because the street’s lawless appearance is warning you of danger.
Writing in 1982 in The Atlantic magazine article entitled Broken Windows, George L. Kelling and James Q. Wilson proposed their theory that smaller examples of disorder and antisocial behavior such as broken windows lead to more serious criminal behavior. The authors introduced the concept this way:
Consider a building with a few broken windows. If the windows are not repaired, the tendency is for vandals to break a few more windows. Eventually, they may even break into the building, and if it’s unoccupied, perhaps become squatters or light fires inside.
Or consider a pavement. Some litter accumulates. Soon, more litter accumulates. Eventually, people even start leaving bags of refuse from take-out restaurants there or even break into cars.
According to the broken windows theory, a relatively minor problem such as a building with one or two unrepaired broken windows can lead to more vandalism, and eventually serious criminal behavior. A neighborhood with poor maintenance of its properties can produce higher crime rates and encourage criminals to be bolder, believing that nobody cares or will do anything about it.
Since the theory was first suggested in 1982, many studies have found a relationship between disorder and antisocial behavior. Mayor Rudy Giuliani attributed police action based on the theory to the successful clean-up of New York City in the mid-1980s. The city started an aggressive campaign against graffiti and developed a zero tolerance policy towards public drinking, subway fare evasion, vandalism and the “squeegee men” (who washed the windshields of cars stopped at traffic lights and then demanded payment.)
However, there has also been substantial debate as to the broken windows theory and other studies suggest there is only a correlation between the neighborhood environment and increased crime and not a causative relationship.
So how does this discussion relate to community associations? Deed restrictions as a form of land use control only work when the majority of homeowners voluntarily maintain their properties and follow the rules. Allowing a neighborhood to deteriorate lowers property values, discourages investment and creates a downward spiral where unmanaged violations spread to create worse violations.
Applying the broken windows theory to a homeowners association, when there are a substantial number of obvious violations in a community, people may conclude that there are no rules anymore and act accordingly.
If one violation encourages another violation and if smaller violations lead to bigger violations, the failure to fully enforce the restrictions can result in significant problems for an association.
One of those problems is the claim of waiver, which can be a serious obstacle to deed restriction enforcement. This defense has been found by Texas courts when there are so many violations in a neighborhood as to lead the average observer to reasonably conclude that the restrictions had been abandoned and were no longer a benefit to the neighborhood. Courts look at the number, nature and severity of the violations and determine if the violations are extensive enough to be considered waived or abandoned.
Not dealing with your deed restriction violations early and consistently increases the difficulty of dealing with them later. The twin values of a deed restricted neighborhood — protecting property values and preserving the quality of life in the community — are only accomplished by the regular enforcement of deed restrictions.
So, in a very real sense, not dealing with your broken windows today can lead to broken deed restrictions in the future.
Austin Barsalou has represented community associations for over 30 years and is former Chairman of the Legal Committee of the Greater Houston Chapter of the Community Associations Institute.