HOA definitions of two story dwelling

Started by KevinP6 • 13 replies • 1803 views

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KevinP6 (North Carolina)
Posts: 7

Posted:

What does a two story dwelling mean? Does it include an attic? Can an attic be a space that can be somewhat finished? Is it ok to allow people who visit to sleep there while they visit or am I out of line? Can it have windows to allow light in?

KevinP6 (North Carolina)
Posts: 7

Posted:

Just for clarification, these are the specific questions presented to me by a soon to be home owner moving into my HOA. I cannot find answers to these questions specifically. They also posed the question to me the difference between two and two and a half stories. This is beyond my scope of understanding. You would think that this is an easy situation but for me I cannot give a direct answer.....

LawrenceC1 (Georgia)
Posts: 480

Posted:

Kevin,

There is a very interesting court case that centered on the definition of "one story". You can read about it at http://www.cohoalaw.com/what-the-courts-say-when-is-one-story-one-story.html.

When there is something in your governing documents that is not clear, courts will usually construe any doubt in favor of the grantee (you).

KevinP6 (North Carolina)
Posts: 7

Posted:

Thank you for your input. So here is the specific circumstance. There is a house in my area that was built by a builder to be a two and a half story home according to North Carolina Real Estate laws. According to our HOA regs, it is a three story home and we only allow two story homes. We went to court already with the builder and the judge ruled in our favor and made them put dry wall over the doorway that accesses the attic living space. My concern now is that there is no access to that living space which has running water and electrical outlets. What should we do. Change our regs to allow such homes, which will only increase value to our existing homes, or make the future home owners completely remove the attic living space and make it bare rafters. It is not their fault that it was built that way. What should we do?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

What is the EXTERIOR look like? Is it a two story appearance? This is an internal issue being applied externally. Or vice versa...This issue shouldn't be enforced internally to anyone's home. We had a few people convert their attic spaces to extra rooms that were designed 1 story. As long as the work is done right.

Does this effext the dues paid? Does a 2 story pay more? Otherwise I'd leave this issue alone.

Former HOA President

TimB4 (Tennessee)
Posts: 21,059

Posted:

Kevin,

Exactly what did the Association win?

Per your posting, the builder had to block access to the finished attic space. Yet the physical overall size of the home did not change. There must be more to that story. Otherwise, I don't see why it even became an issue as it's not much different than finishing off a basement for additional living space.

KevinP6 (North Carolina)
Posts: 7

Posted:

Essentially, it is a two and a half story build, but honestly it does not look like a three story home. Does it really matter if they have converted their attic space into a living space? I personally don't think that it matters, however, I am being criticized by other members.

KevinP6 (North Carolina)
Posts: 7

Posted:

Tim,

So, our HOA policy states that we only allow two story homes to be built on the properties in our area. This home is technically a three story home according to HOA regulations. So, they had to put up the wall blocking access to the third floor and sell the home as a two story home. The future buyer is cautious to buy because of this.

LawrenceC1 (Georgia)
Posts: 480

Posted:

I am surprised that a court would make a ruling based on the interior configuration of a property. Certainly the exterior appearance of a three-story house in a community of two-story homes would be actionable, but it doesn't make a difference to anyone except the owners if an interior door is walled up. An unreasonable rule in Covenants is not enforceable.

I expect that this ruling would be overturned on appeal, just like the one in the case I posted earlier in this thread.

KevinP6 (North Carolina)
Posts: 7

Posted:

Thanks for the info. I will try and dig a little deeper into the whole judgment on the property. Do you know, would the increase in square footage heated/cooled actually motivate other board members to want to press the issue? It blows my mind how these little things are getting blown out of proportion.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Kevin,

I am not sure if I understand the situation. Your HOA has gone to court on one home and won an injunction. Is there now a second home with the same issue of exceeding two stories or is your board still stewing over the first home?

If the first home is still an issue, what is that the board wants? It sounds like they got their day in court and it's a done deal albeit with kind of strange results.

BTW, what is there to prevent a future owner from opening up access to the attic and using it precisely as the builder intended?

KevinP6 (North Carolina)
Posts: 7

Posted:

Well, it is the same house. I think what needs to happen, and maybe you would do the same, is issue a waiver for that property to alleviate the circumstance so that they don't screw the next person who buys the property.

Also, there is nothing but a piece of drywall and our regulations that prevent the next owner from using the extra floor for its intended purposes, of which I can't say I wouldn't do the same. I think it would be kind of creepy living in a home where I know there was a whole floor open and I could not see what was happening in it or have any control over it because of a thin piece of drywall.

I really don't know what we should do, except for just allowing it to have the waiver. That would be the easy road and best for everyone I think......

FredS7 (Arizona)
Posts: 927

Posted:

> Can it have windows to allow light in?

IS there any issue of external changes or external appearance? If that is the case it will change the entire picture.

The only other things I can imagine that might matter-

- could it influence tax assessments?

- are there local zoning laws that apply?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By KevinP6 on 05/03/2012 8:43 PM
Well, it is the same house. I think what needs to happen, and maybe you would do the same, is issue a waiver for that property to alleviate the circumstance so that they don't screw the next person who buys the property.

A Board typically doesn't have the authority to waive a covenant.

Am I correct that this is where the issue is, the CC&Rs are defining what a two story house consists of?

What is the definition that you Association is using?

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