Developer allowed covenant to be broken

Started by BuckJ • 7 replies • 1557 views

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BuckJ (Tennessee)
Posts: 2

Posted:

We have a developer that controls the hoa until he sells all his lots or 10 years. He still has several lots and his 10 yrs will be in Dec 2015.

A different builder is constructing a new house one one of our builders lots. There is a covenant that states the roof pitch should be no less than 8/12.
This newly constructed house has a 6/12 roof pitch and is obvious from all the other homes in the subdivision. It appears so out-of-olace.

As homeowners, we had a meeting and invited our developer who currently has control however he was a no-show. Several homeowners have decided to band together and retain a lawyer.

Can our subdivision developer allow a builder to violate this covenant - All other current homeowners in the subdivision had to abide by it when we build our homes.

Obviously, the developer wants to sell his lots so approved of the builder's plans.....

Please advise.

Thanks

LarryB13 (Arizona)
Posts: 4,099

Posted:

Buck,

Based on various court cases, the covenants are a contract between the owners as well as the grantor. The recorded covenants are as binding on the developer as they are on any lot owner. Unless there is a specific clause in the coventants allowing the developer to waive restrictions, he has no right to do so. Your group of owners is on the right path but you will definitely need a lawyer's assistance.

BTW, a number of court cases I have read indicate that there is a need to take at least one step as soon as possible. That step is to inform the violator, the second builder in this case, that there is a covenant requiring a certain roof pitch and that he appears to be violating that covenant. Once he has been informed of the violation, he proceeds at his own peril. If no one objects at a meaningful time, the builder may claim as a defense that the house is finished and it will cost way too much to correct the violation.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

I have heard of CCRs (Declarations) that contain a section titled something like "Special Declarant Rights." These clauses have been known to give developers the right to do almost anything they want with regard to constructing units for sale, even after control has been turned over to the homeowners. Our Declaration even has a section entitled "Interference with Special Declarant Rights."

DaveD3 (Michigan)
Posts: 796

Posted:

Larry has an excellent point in that the builder needs to be notified that he is not following the covenants. ASAP.

AnnH5 (Florida)
Posts: 304

Posted:

If you can nip it in the bud then I would also second what everyone else is saying. In our community, the developer granted some variances or exceptions as some of the homes were built or immediately after. Driveways and fences for example. Then after the HOA was turned over to the owners, there was some conflict. How do you enforce deed restrictions when some are out of compliance before you ever get started as a new Association? Also a few others became angry because they could not alter their property in the same manner. We had to grandfather in certain homes and even amend some of the deed restrictions.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By BruceF1 on 10/15/2013 2:29 PM
I have heard of CCRs (Declarations) that contain a section titled something like "Special Declarant Rights." These clauses have been known to give developers the right to do almost anything they want with regard to constructing units for sale, even after control has been turned over to the homeowners. Our Declaration even has a section entitled "Interference with Special Declarant Rights."

Sorry to say, but this is quite common and typical. While under declarant control, it is quite easy/legal for the declarant to grant "waivers" without owners knowing such was done.

I am not advising the OP not to fight, but I am saying be prepared to lose especially if the declarant dotted all the i's and crossed all the T's.

BuckJ (Tennessee)
Posts: 2

Posted:

I appreciate all the feedback. It's amazing how many disputes are generated between all of the parties! I personally believe that when you purchase property and build a house based on covenants, then it pertains to "everyone", especially architectural design such as sq footage, brick, roof pitch, etc.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Quote:

Posted By BuckJ on 10/16/2013 5:55 AM
I appreciate all the feedback. It's amazing how many disputes are generated between all of the parties! I personally believe that when you purchase property and build a house based on covenants, then it pertains to "everyone", especially architectural design such as sq footage, brick, roof pitch, etc.

I've said it before, and I'll say it again.

Whenever you plan to buy a home it's always wise to hire your own lawyer to look after your own interests. The investment is too large to ignore this advice. Most lawyers will charge only a reasonable fixed fee ($700 to maybe $1200) to do this, often to be paid at closing. When purchasing a home in an HOA you can provide the lawyer with copies of the documents and your lawyer can advise you of any odd clauses or possible pitfalls you should be aware of.

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