NO HOA, only CC&R - how to determine if Declarant is "active"

Started by ChevyR • 7 replies • 3200 views

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ChevyR (Oregon)
Posts: 3

Posted:

hello members,

I'm starting a new thread per suggestion but the topic is similar to one posted in 2011.

In a situation where there is no HOA, only a CC&R how does one go about obtaining permission to override the CC&R.
The subdivision has 9 lots, surrounded by other CC&R neighborhoods. I briefly talked to the Declarant, who stated that he doesn't want to get involved or file a legal exemption for the lot from the CC&R. How long does the Declarant lay claim on the subdivision if no HOA was established? How am I guaranteed that the Declarant won't intervene at any point and enforce the CC&R.

It's been over 10 years since the Declarant developed the lots. This is one of two lots in the subdivision that doesn't have a structure. I haven't built on the lot yet, and am currently doing my due diligence before plans are drawn.

Someone suggested that I talk to all the neighbors before proceeding. Is there a way for the neighbors (if all in agreement), to make changes to the CC&R, or remove all CC&R, if Declarant doesn't challenge?

Thank you ahead of time for your help.

JohnB26 (South Carolina)
Posts: 1,569

Posted:

you signed a contract ~ the Covenants and Restrictions ~ with other people

you need to adhere to the contract

end of story

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By ChevyR on 05/06/2014 5:34 AM

In a situation where there is no HOA, only a CC&R how does one go about obtaining permission to override the CC&R.

The procedure should be within the CC&Rs. Typically it's a certain percentage of members agreeing to the change and then having the change recorded with the County or State (so the amendment becomes part of the deed).
I've seen percentages from 2/3 to 100% required to amend the CC&Rs.

Quote:

Posted By ChevyR on 05/06/2014 5:34 AM

I briefly talked to the Declarant, who stated that he doesn't want to get involved or file a legal exemption for the lot from the CC&R. How long does the Declarant lay claim on the subdivision if no HOA was established?

That information is typically contained within the governing documents or State Statutes.

Quote:

Posted By ChevyR on 05/06/2014 5:34 AM

How am I guaranteed that the Declarant won't intervene at any point and enforce the CC&R.

You can't. Additionally, you can't guarantee that anyone else won't enforce the CC&Rs.

For example: There is one parcel of land near Winchester VA where the Association was dissolved and no assessments were collected. However, the CC&Rs specified that the properties within this development would pay a certain amount to maintain a battlefield park in the area. Well, a group of re-enactors did research, discovered the deed restrictions and took everyone to court to enforce the CC&Rs and have them pay money to maintain the park.

I'll have to do some research to locate that story and I don't have time at the moment. If I can locate it later I'll post a link to it.

So the only way you can guarantee that the CC&Rs won't be enforced is to not have CC&Rs.

Quote:

Posted By ChevyR on 05/06/2014 5:34 AM

Someone suggested that I talk to all the neighbors before proceeding. Is there a way for the neighbors (if all in agreement), to make changes to the CC&R, or remove all CC&R, if Declarant doesn't challenge?

Owners of all the lots that have the same CC&Rs attached must agree (or a percentage of them). Therefore, it may not just be your neighbors. You may need to do some research at the courthouse to see what properties have those same set of CC&Rs.

JohnB26 (South Carolina)
Posts: 1,569

Posted:

blah blah blah

to repeat:

you signed a contract ~ the Covenants and Restrictions ~ with other people

you need to adhere to the contract

end of story

RwT (Florida)
Posts: 154

Posted:

Chevy,

Don't be discouraged by those who are set in their ways and thinking.

Change is difficult foir most but not inevitable... sometimes it needs a catalyst.

Others may feel the same as you!

Communication is the key.

You will likely need some legal support so be prepared.

* Non-Lawyer spokesperson.

JohnB26 (South Carolina)
Posts: 1,569

Posted:

ALL your answers will be found WITHIN the contract ~ including the procedure to amend same

if not amended PROPERLY it will remain in effect AS IS

to repeat:

you must adhere to the covenants, including the process to amend same

? what part of 'set in their ways' changes contract law ?

JohnB26 (South Carolina)
Posts: 1,569

Posted:

ps. the ONLY way to 'override' the covenants would be to amend them

NO ONE has the authority to 'waive' a provision of a group contract EXCEPT the group itself ~ and then, only by following the process 'spelled out' in the document itself

BEST OF LUCK

(all else is blah blah blah)

CAVEAT EMPTOR

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By ChevyR on 05/06/2014 5:34 AM

How long does the Declarant lay claim on the subdivision if no HOA was established?

How am I guaranteed that the Declarant won't intervene at any point and enforce the CC&R.

Is there a way for the neighbors (if all in agreement), to make changes to the CC&R, or remove all CC&R, if Declarant doesn't challenge?

Your CC&R's should answer these questions. Customarily, the Declarant's rights end with the sale of the last lot. I know of nothing, however, that would prevent him from inserting language into the CC&R's requiring his approval for all amendments even after the last lot is sold. Read through your CC&R's to see if there is any provision to require his approval for amendments to the CC&R's. If no such language exists then it is likely that he has no more control over the CC&R's than any other lot owner and if he has sold all the lots he has no authority at all to intervene.

Your declaration should also have a provision for amendments. Typically, anywhere from half to all property owners within the development will be required to approve an amendment. It is not common, but some CC&R's require that, in addition to the property owners, the Declarant and/or mortgage lenders must also approve. These requirements will be explicitly stated in the CC&R's and if not present means it does not apply.

Should you build in violation of your CC&R's, whether your declarant or neighbors would try to enforce the CC&R's will depend a lot on how far from them you deviate. For example, if the CC&R's mandate French Colonial and you build a log cabin you are more likely to end up in court than if you deviate from the CC&R's by painting your front door red instead of white. Anyone who wishes to enforce the CC&R's through a civil action will need to put up at least $25,000 in hard cold cash (with no upper limit) just to start. The farther you deviate from the CC&R's makes it more likely that someone will try to enforce them. You be wise to seek out the advice of an attorney before building anything that knowingly violates the CC&R's.

Your statement that the Declarant "doesn't want to get involved or file a legal exemption for the lot from the CC&R" also hints that he may not wish to get involved in enforcing his own CC&R's. It will cost him a bundle to do so and if owns none of the property he will derive no benefit from an enforcement action.

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