Covenant Violation (Mobile Home)

I am wondering have any of you experience such a problem? No

What are the changes we will win in court? This is in Georgia. 50/50 depending on the exact wording of the covenant and the judges mood that day.

How much should we expect to spend in Lawyer fees and court cost? Question for the attorney but if you prevail you can request the judge to award your attorney fees. Of course if he wins the opposite is true.

Before you go to court, I would go to the County and make sure there are no zoning violations, health violations, fire violations (proper number of smoke alarms, co2 monitors) etc.

Greg

It seems you have your answer. My experience says is the Convenants are fair/reasonable and all signed for them then the association will win in court. That said, does one want to risk it? Have you consulted with fellow owners? are enough willing to fight it?

One action that might possibly be taken is a formal notice of Covenant violation, fines begin, and a lien is placed if a lien can be placed for fines in your state. This might take some work to do but at least it is not walking away from the situation and it puts the Association on record as opposing what has happened.

Hope this helps.

John,

We as a group have sent him a certified letter stating that he has Violated the Covenant, to which he has stated take me to court if you want it moved.

When does a Mobile Home become a Mobile home? That is the main question the Lawyer keeps stating also. From what he says the Georgia Supreme Court refuses to define that and refuses to hear cases on this subject. In the reasonable persons mine there would be no doubt that this is a mobile home on his property. Even the County Permit states it is a Mobile Home, Single wide, 14x70 with wheels still on it.

There is one property that is still up for sale. That is the main reason we are all concerned. We do not want others to coming and place mobile homes on their property too. Also, I know that within the next 9-12 months I will be selling and moving to a new 25 acre plot of land I am purchasing. I know this mobile home will devalue my current property.

I have a couple of thoughts here.

First, Greg, does anyone know whether or not the "violator" has consulted an attorney himself? It's possible that, by challenging you to take him to court an attorney may have advised him to simply issue such a challenge.

Second, sometimes courts are reluctant to hear a civil case simply on "principle." That is, even if there has been a covenant violation, some judges may refuse to hear such a case unless it can be shown that actual (monetary) harm has been done. You may assume that your property values have been negatively affected, but until someone actually attempts to sell the property and it can be demonstrated that the offending party's covenant violation actually contributed to monetary loss on the sale, then there are no monetary damages to sue for.

It's a tough decision, and the violator likely knows that. That's why he challenged you to take him to court. Fifty-fifty odds with a $5,000 retainer plus expenses (which could run into the thousands) to fight a covenant violation on principle alone does not sound like a battle I would want to take on.

Mel

I know little about the subject but I believe in some states/locales the "under pinning" can make quite a difference in the legal definition of is it a mobile home or not, regardless of how it arrived on site. Meaning if not able to be towed away by a motor vehicle, it is not a mobile home. I also think in many states/locals, the size also plays a role in the decision.

Unless I am mistaken, there are more mobile homes per capita in SC then any other state.

We live in a small Rural community (6 Land owners, 2-10 acres each) where the original owner of the property sold the land to each landowner/home owner placed Restrictive Covenants on the property at the time of sale of each parcel, not on the whole subdivision at the being of development.

What exactly is the wording in the documents regarding an association?
What exactly is the wording in the documents regarding enforcement of covenants.

If each set of covenants state a specific entity is in charge of their lot, and that association is the same for every lot, then I would assume the association would have the right to enforce the covenants. If no association is mentioned, do the governing documents at least defines all 6 lots to be under the same jurisdiction? Do the documents outline who can enforce them?

Is the original owner of the property still involved in the community?

If not I would doubt they would have the authority to enforce the covenants, and even if there is a covenant stating that they do, I doubt a court would uphold a challenge from someone with no more interest in the property (or as previous probabilities have been stated, a judge could rule against this homeowner).

As for the definition of a mobile home, this may offer some clarification:

Mobile Home is defined as “a detached residential dwelling unit designed for transportation after fabrication on streets or highways on its own wheels or a flatbed or other trailer, and arriving at the site where it is to be occupied as a dwelling complete and ready for occupancy except for minor and incidental unpacking and assembly operations, location on jacks or other temporary or permanent foundations, connections to utilities, and the like. A travel trailer is not to be considered a mobile home." See Greene County v. N. Shore Resort, 238 Ga. App. 236, 237 (Ga. Ct. App. 1999)

http://georgia-court-appeals.vlex.com/vid/greene-shore-resort-lake-oconee-llc-20426424

Greg,

When your neighbor responded to your collective demands to remove the mobile home, did he answer personally or through an attorney? If he did not respond through an attorney it is likely that he does not have one and has not sought legal advice. The world is full of people who seek legal advice only after they have been served with process.

Your biggest worry in pursuing an action is whether the deed restrictions allow you to enforce them. If the other party shows up with an attorney his first line of defense is likely to be that only the declarant may enforce the restrictions. Check the specific language of the covenants to be sure that you have standing to enforce them.

BTW, having someone say “Sue me” is somewhat of a blessing. In most states you can recover your attorney fees if you prevail in court on a contract issue. One of the tests the courts often apply is whether the lawsuit was really necessary. When the defendant insists that he be sued, the lawsuit becomes necessary and he will be on the hook for all costs when he loses.

Greg and John,

I never thought about this before, but if deed restrictions are recorded as public records could anyone enforce the restrictions even if he is not a property owner?

For example, in the 1940's my grandfather sold a small plot of land and placed a deed restriction that prohibited the property from ever being used for a bar or for the sale of alcoholic beverages. My grandfather died over fifty years ago yet the deed restrictions are still a matter of public record. If the current owner of the property decided to build a drive-thru bar and liquor store could some tea-totalling irate citizen invoke those restrictions to prevent the new use?

Does the mere fact that the restrictions appear in the public records give any and all citizens the standing to enforce them?

I do not have an answer as this just popped into my head a short time ago.

In Georgia being that our properties are located outside of a city and are located in an area that does not have zoning the covenants run on forever per the Deed filed with the County.
Per GA law O.C.G.A. § 44-5-60 (2012) states the following: any such covenant, if created prior to zoning laws being adopted by that county or municipality, shall continue to be effective in such jurisdiction until the expiration of such covenant in accordance with its terms.

Standing: Per GA Law anyone of the property owner can file a case if the Covenant has be broken by one other person in the community. The whole community does not have to join in the suit. So, we do have standing per our Lawyer.

The neighbor is a young man maybe 24-25 years old. Who states he did not know that the property had covenants on and therefore is not obligated to comply with the covenants. He is wrong!

Per GA Law
44-5-39. Binding effect of covenants on grantee who accepts deed

When a grantee accepts a deed, he is bound by the covenants contained therein even though the deed has not been signed by him

44-5-60 also states: § 44-5-60. Covenants running with land; effect of zoning laws; covenants and scenic easements for use of public; renewal of certain covenants; costs

(a) The purchaser of lands obtains with the title, whether conveyed to him at public or private sale, all the rights which any former owner of the land under whom he claims may have had by virtue of any covenants of warranty of title, of quiet enjoyment, or of freedom from encumbrances contained in the conveyance from any former grantor unless the transmission of such covenants with the land is expressly prohibited in the covenant itself.

Also, about the fees being reimbursed to us, again the law is in our favor

TITLE 44. PROPERTY
CHAPTER 5. ACQUISITION AND LOSS OF PROPERTY
ARTICLE 3. COVENANTS AND WARRANTIES

O.C.G.A. § 44-5-60 (2012)

(e) To the extent provided in the covenants, the obligation for the payment of assessments and fees arising from covenants shall include the costs of collection, including reasonable attorney's fees actually incurred.

Our Lawyer in the filing has requested the reimbursement of all legal fees.

Where you part of the legal battle?

Yes and it does not make a whole lot of sense either does it.
The town that is the largest in the county has for some years now not allowed any new mobile homes to be place within the City Limits. Wish they could do that for the whole county.