Neighborhood HOA/Developer Conflict

Started by StefanR1 • 3 replies • 1946 views

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StefanR1
Posts: 2

Posted:

Hello all,

Looking for some feedback on an issue, I have yet to encounter. Our neighborhood started in 2006 and with the crash, it fell to the wayside for a time. Now it has started to turn and a new builder and developer are working it. Right now, there is a phase I almost completed and plans for phase II and III have been platted and are kicking up. Couple of problems in general.

- Developer said they would put in a construction entrance and now is saying he will not until Phase III. Any legal planning rules on this issue? Already tearing up existing roads with construction debris like nails and such.

- Also as homeowners, we pay dues but do not have a formal association in place and do not manage the common areas. Being told that until development is near completion that we essentially cannot stand up the HOA. Not sure, this is true as I read the membership section in covenants. Having real difficulty getting developer to standardize maintenance of common areas like mowing and such. What can we do?

- Also as it stands developer plans to put a 1400 sq. ft. house in a small lot when covenants say minimum of 1800 sq. ft. A call to my local zoning reveals he may be well within that right and it is not enforceable by city and is zoned as an R1 with only a 600 sq. ft. minimum.

A lot to read but am desperate for any help and guidance from those who may have experience with this issue.

Stefan Rice

LarryB13 (Arizona)
Posts: 4,099

Posted:

Stefan,

One of the things I have learned from this forum is that purchasing a home in subdivision that is still under construction is risky from the HOA standpoint. The problem is that until enough homes are sold (and that will vary with each CC&R) the developer remains in control of the association. The developer's agenda is to sell homes; your agenda is to have a nice place to live. Add to that problem is that most developers know little to nothing about the law because they do not believe it applies to them.

The construction entrance would be a problem to enforce. Unless your local building department has some say in the matter it would be pretty much up to you and your attorney to stop the developer from tearing up the roads. If the developer filed some sort of plan with the city or county that showing a separate construction entrance, you may have a case to be made with that agency. If the roads have been dedicated to and accepted by the city or county, you may be able to get that entity on his case.

The 1400 square foot house is an issue you ought to deal with immediately. I have read a number of court cases where property owners have built structures in violation of the covenants. In each case the owner argued that it would be a hardship to remove the structure, but in each case the court held that the owner had been made aware of the violation before he began construction and continued anyway. This implies that there is a defense to made if the owner is unaware that he is violating the covenants. You may be able to prevent the developer from building in violation of his own covenants by informing him (by certified mail) that his tiny house does not comply with the deed restrictions. If he continues onward with his construction, you will have preserved the issue for later litigation either on your own or with others. Letting the developer build a violating structure without objection now may cost you the opportunity to object later.

StefanR1
Posts: 2

Posted:

Thanks for the input Larry. Sometimes learning the hard way is unavoidable. I like your idea about the certified letter showing objection and seeing what response is given. Learned a bit from the some city officials toady about zoning laws and such. Thanks again for the info.

Stefan

PaulT6 (California)
Posts: 409

Posted:

Quote:

Posted By StefanR1 on 10/08/2012 5:42 PM
Thanks for the input Larry. Sometimes learning the hard way is unavoidable. I like your idea about the certified letter showing objection and seeing what response is given. Learned a bit from the some city officials toady about zoning laws and such. Thanks again for the info.

Stefan

I feel your pain. 21 years ago we moved into our 6,400 property Assn. At that time it was about 50% to 60% build out. Now we are at about 85% build out. The ongoing construction activity, except for the last four or so years, was extreme GRIEF. I would never again buy into an area that wasn't built out.

Make friends with your City zoning Staff, and learn the codes thoroughly. They are probably your only hope in dealing with the developer, short of legal action.

Paul T

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