covenant violations, waivers and variances

Hi Richard:

Welcome to HOAtalk.

The issue in NM is under Chapter 47 Property Law you have Article 5 regarding Subdivisions Generally, Article 6 County Subdivisions, and various Articles in 7 including 7a-d for Building/Condominium Ownership. In essence I do not see any state statutes regarding “single family” common interest ownership act.

Variance vs. Waiver – Similar yet different so let’s see if I can answer in a manner that makes sense:

Waiver – This is generally a “minor” permit allowed for “sufficient cause”. In essence a waiver is the grant of an exemption from a requirement of regulations.

Variance – This is generally for items which would cause “unnecessary hardship”. An example here would be for items where a homeowner could be deprived of “reasonable use” of the land or building and for unique circumstances. In essence variance means the granting of an alternate requirement in place of a requirement.

I need to clarify some information please:

1. Does the 3,900 SF violate any city/county regulations for the subdivision? If so, this potentially would be up to said entity to possibly review and determine. Otherwise …

2. Homeowner expanded garage into studio: With regards to exterior did the owner keep the exterior appearance to be garage or were garage doors removed and studio made permanent fixture of overall home? The reason I ask is because whether an individual parks a vehicle in the area or a couch and turns it into a “man cave” or “studio” what difference does it make in how anyone chooses to utilize the interior of their home. It is the exterior which the HOA is more responsible for with regards to future enforcement after a single family subdivision is built.

If the spec home was approved and was error of previous ARC, then potentially this home should be given a variance. It is already constructed with “approval” and would cause an unnecessary hardship to change after the fact. I would recommend the variance given for their records state that it is given due to ARC approval error. This should not affect future attempts to enforce as it was an honest mistake and variance given for said mistake.

Hi Richard:

Actually the pertinent question is … Why is there a 3,900 SF Maximum?

Generally CCR’s will only have a Minimum SF to prevent too small of homes being built and which could potentially affect other home values. If there is a Maximum SF in the documents I am concerned and question if this is due to local city/county planning ordinances only allowing that maximum? Does this home violate any local planning ordinances?

If a larger home does not violate any local ordinances and someone would like to build a larger home, it would not necessarily lower other home values. This is again why many CCR’s do not address the maximum and only the minimum. Therefore, have you asked the other homeowners if they have issues with larger homes and if not would they be willing to amend the CCR?

You can go with the waiver and prevent in the future, but if was not for a valid necessary reason then possibly others could build to the same SF, if challenged in court and they win. Also, the HOA can vote and amend the CCR to reflect the new updated SF or eliminate the maximum SF allowed. This would then be determined by the majority of owners on what they desire for the neighborhood and legally binding. In essence it would eliminate the waiver concerns.

We are not attorneys and can only offer advice based on our experiences and what we have learned due to other similar scenarios. Your situation is similar to my HOA except for the opposite SF direction, in ours the CCR was changed behind our back to lower the SF and is in court.

Hi Richard:

I now know where you are at … my mom lives in White Rock, NM.

Per your statement:

My immediate concern has to do with the affect of waivers or variances have on covenants. When they are applied to a covenant, will that create problems in the future enforcing the covenant that was waived. The most urgent issue is the house that violates the height restriction, since most who have moved here have done so for the great views of the Sangre and Jemez.

I would recommend giving a variance to the home that exceeded the height restriction. In the variance put the specific reasons why in that it is due to “unnecessary hardship” because of an ARC error and which was not the fault of homeowner. The unnecessary hardship is due to the cost of replacing or fixing which would potentially be HOA responsibility, if variance not allowed because it was an HOA error. This variance potentially would hold up in a court of law if challenged and the CCR’s can be enforced moving forward regarding the height of homes remaining as stated in the Declaration.

The SF issue should potentially be determined by the homeowners and I would recommend amending the CCR’s, if no local ordinances are violated. This way the CCR properly reflects the SF to remove something which could be challenged by anyone in the future … just as a liability precaution.