Does County Plat supercede CCR

JoK2 (California)
Posts: 198

Posted:

Good Morning!

At last night's meeting someone stated that if an "object" that violates the CCR is somehow included on a county plat, then it's a legal object. Having no clue I thought I would get feedback here. We instructed that particular homeowner to do his own research to see if that is actually legal or not. Naturally, there is something on his property that is a violation to CCR but somehow is included on the plat when he bought the house. An official plat is a legal document, but my thoughts are that it is apples and oranges in this instance.

Asking today as a "Past President"! plop...plop...fizz...fizz...oh what a glorious relief it is!

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Sounds to me like its grandfathered because it was there before the HOA was created.

TimB4 (Tennessee)
Posts: 21,059

Posted:

I've got to ask, what is the object?

Based on what I've seen, a PLAT shows individual lots, easements, streets, perhaps features (like sidewalks, traffic islands, storm water management features (dry wells, retaining ponds, etc.) and, perhaps, utility boxes (although they typically just show an easement).

DaveD3 (Michigan)
Posts: 796

Posted:

What type of object are we talking about? That would really help with the discussion.

I agree with Steve. If it's been there so long as to be platted, how could the HOA have a leg to stand on with an objection to its presence?

JoK2 (California)
Posts: 198

Posted:

He did not say what it was, however it is most likely a chain link fence or flagpole. He is referencing the thought process that if the builder "approved" items that violated the CCR's while builder was declarant, and someone got a survey done later that depicts a violation of any kind, then the county rules over the CCR's. It's a valid question. Who would rule in this? My initial answer is our CCR's rule because the plat is for boundary lines, easements like Tim states. It is not a reflection of what is allowed or disallowed by the docs.

The definition given by our attorney of the term grandfathered, something can only be considered grandfathered when the CCR's are changed. ie. the pink flamingo that violates your docs can be grandfathered in when your docs are changed to say they are allowed. If your docs say they are not allowed, under no circumstances are you allowed to just grandfather flamingo's in.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Jo,

The normal process would be for the developer to purchase a property and have it surveyed. The resulting plat would be recorded, followed by recording of CC&R's. The surveyor normally identifies any man-made objects he finds, including chain-link fences.

If there was a chain-link fence when the property was surveyed and the CC&R's do not allow chain-link fences, the next logical question would be is it still there of did the developer remove it? There is no reason why the developer could not remove the chain-link fence even after recording the plat.

The homeowner's argument appears to be that since there once was a chain-link fence somewhere within the subdivision and it was there when the property was surveyed that all chain-link fences anywhere within the subdivision are permitted even though the CC&R's, recorded later, prohibit chain-link fences.

Am I correctly stating the homeowner's argument?

DaveD3 (Michigan)
Posts: 796

Posted:

Quote:

Posted By JoK2 on 05/13/2014 8:06 AM
He did not say what it was, however it is most likely a chain link fence or flagpole. He is referencing the thought process that if the builder "approved" items that violated the CCR's while builder was declarant, and someone got a survey done later that depicts a violation of any kind, then the county rules over the CCR's. It's a valid question. Who would rule in this? My initial answer is our CCR's rule because the plat is for boundary lines, easements like Tim states. It is not a reflection of what is allowed or disallowed by the docs.

The definition given by our attorney of the term grandfathered, something can only be considered grandfathered when the CCR's are changed. ie. the pink flamingo that violates your docs can be grandfathered in when your docs are changed to say they are allowed. If your docs say they are not allowed, under no circumstances are you allowed to just grandfather flamingo's in.

Only when the CCR's are changed? Were they not changed when they were written? The poor "flagpole" or whatever went from being perfectly permissible to illegal.

Grandfathering would work the opposite you stated.
If you went from no rules against pink flamingos to prohibiting them, or declaring they need to be polka-dotted blue & green, those people who from that point on want a flamingo need to comply with the polka-dot rule. Those who already had pink ones could be permitted to keep them since their existence pre-dated the rule.

Same with the "flagpole". It pre-dates any rules. One day it's fine, the next it's not. But apparently nobody cared that it wasn't until now.

FredS7 (Arizona)
Posts: 927

Posted:

Seems to me that the plat (which goes to the city planning before construction, right?) could very well contain things that the developer intends to REMOVE when building.

I could be wrong but this might be the case for my association.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Many of today's residential developments were once farmland. Does the fact that there used to be chickens, goats, and pigs mean that they are grandfathered in? No, because when you buy a home it is subject to the CC&R's and not some historical use and not what the surveyor found when he described the tract.

If a chain-link fence is prohibited in the CC&R's then it does not matter whether there was once one somewhere in the subdivision. The person bought the house subject to certain restrictions set forth in the CC&R's and one condition was no chain-link fences.

DaveD3 (Michigan)
Posts: 796

Posted:

Quote:

Posted By LarryB13 on 05/13/2014 9:11 PM
Many of today's residential developments were once farmland. Does the fact that there used to be chickens, goats, and pigs mean that they are grandfathered in? No, because when you buy a home it is subject to the CC&R's and not some historical use and not what the surveyor found when he described the tract.

If a chain-link fence is prohibited in the CC&R's then it does not matter whether there was once one somewhere in the subdivision. The person bought the house subject to certain restrictions set forth in the CC&R's and one condition was no chain-link fences.

I PARTIALLY agree, Larry.

A zoning change from farmland to high-density residential, for example, would preclude how the land is used.

A fence-post or fence left over from those farming days, that was not removed by the developer, that was not cited as a violation previously, that pre-dates the present ownership of the unit, is difficult to consider a violation imho. That would be like citing someone for having an 80 year old oak tree that's not in a permitted location per the HOA rules.

JackE1 (Indiana)
Posts: 26

Posted:

If it is something prohibited in the CC&R's but the developer allowed it to remain, then the H/O should have a written exemption from the developer stating it was allowed, otherwise it is probably a violation. If it is a fence, as long as it meets county guidelines for type and setbacks IMHO should be grandfathered until it needs replacing or the property is sold, then it would need to be brought into compliance. A flagpole is a whole other kettle of fish, federal and state law may protect it.

LarryB13 (Arizona)
Posts: 4,099

Posted:

At this point, we do not know what the "object" on the plat is or whether it was removed at some earlier time. I see no point in arguing over it until we know those two facts.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By LarryB13 on 05/14/2014 3:52 PM
At this point, we do not know what the "object" on the plat is or whether it was removed at some earlier time. I see no point in arguing over it until we know those two facts.

I agree. We need details/specifics.

JoK2 (California)
Posts: 198

Posted:

Yes, Larry13, and the fence is on his property.

DaveD3, You are correct, if there are no rules regarding flamingo's no grandfathering would be necessary. Grandfathering anything in would only be used in the sense that any object that is against the CCR can only be granted that status if the CCR was changed to reflect that particular object is now allowed. You seem to be channeling this neighbors thoughts however the flagpole nor the fence predated the HOA, they were installed after the fact.

JoK2 (California)
Posts: 198

Posted:

John and Larry, the objects can be the chain link fence and flagpole for the purpose of my question. Does a County Plat supercede the CCR's. It is a legal document if properly executed as are the CCR's. This home had two owners, so first one put the fence up and if the second one went and had another survey after he bought that house, the plat had the fence on it. So he is claiming that makes the fence legal, despite the CCR prohibiting it.

What's really sad is no one can see this fence which means no one new of it's presence, but now we do.

I appreciate the replies!

TimB4 (Tennessee)
Posts: 21,059

Posted:

I think that this is a question for the attorney.

RwT (Florida)
Posts: 154

Posted:

Quote:

Posted By JoK2 on 05/15/2014 4:31 AM
John and Larry, the objects can be the chain link fence and flagpole for the purpose of my question. Does a County Plat supercede the CCR's. It is a legal document if properly executed as are the CCR's. This home had two owners, so first one put the fence up and if the second one went and had another survey after he bought that house, the plat had the fence on it. So he is claiming that makes the fence legal, despite the CCR prohibiting it.

What's really sad is no one can see this fence which means no one new of it's presence, but now we do.

I appreciate the replies!

Simply commissioning a [current] survey is not equal to a recorded plat.

Maryland has a lot of on-line resources explaining the process for plat research, recording, and history.

On the surface this seems like a simple case of sequencing the existence of: the 'object', the plat, and the corporation.

* Non-Lawyer spokesperson.

DaveD3 (Michigan)
Posts: 796

Posted:

I agree with RwT. Having a survey done does not supersede what the county has as a legal record.

Leaving out the bit of information that this was an owner-installed item that was shown on a subsequent survey certainly muddied what would have been a more simple discussion.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

JoK2

Let me try and get this straight.

The original property owner (A) erected something on his property that violated the Covenants.

Present owner (B) bought the property from A.

B claims as a result of obtaining a survey when he bought the property, that the violation is no longer a violation as it showed up on his survey.

Do I have this right?

If I am right, B is bluffing and you all are falling for it.

JoK2 (California)
Posts: 198

Posted:

lol, no JohnC46, no one has fallen for it, least of all me! Your statement is accurate, with the exception that this homeowner is reaching deep. Naturally there is a history with him, however it is irrelevant to my question. I told him that my initial thought is that it doesn't, but that he should contact the county himself to see if that is the case, throwing the question back into his court.

If an answer is determined via an attorney, I will post it here, thanks for the discussion!

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By JoK2 on 05/15/2014 4:31 AM
John and Larry, the objects can be the chain link fence and flagpole for the purpose of my question. Does a County Plat supercede the CCR's. It is a legal document if properly executed as are the CCR's. This home had two owners, so first one put the fence up and if the second one went and had another survey after he bought that house, the plat had the fence on it. So he is claiming that makes the fence legal, despite the CCR prohibiting it.

The owner-commissioned surveyor's plat, when recorded, is an official document. In this case, it is clear, convincing, and unquestionable evidence of a violation of the CC&R's that has been documented by a state-licensed professional and publicly recorded for posterity.

Normally I would argue that the second owner is an innocent victim of the first owner's willful violation and I would also argue to let the violation go since no one sees it. But this second owner really gets under my skin with this absurd argument that recording a plat showing the violation somehow negates the violation. He is lucky I am not on your board because my vote would be to burn his house down and salt the earth where his yard used to be just because his argument is so damn stupid. Cooler heads might settle for him to just remove the chain-link fence.

In answer to the original question, No, a recorded plat does not supercede the CC&R's. Each owner, including the first and second owners of the property in question, purchased their homes subject to the CC&R's. Recording a plat showing a violation of the CC&R's has no effect on whether the CC&R's may be enforced.

JoK2 (California)
Posts: 198

Posted:

Quote:

Posted By LarryB13 on 05/15/2014 10:56 AM

Posted By JoK2 on 05/15/2014 4:31 AM
John and Larry, the objects can be the chain link fence and flagpole for the purpose of my question. Does a County Plat supercede the CCR's. It is a legal document if properly executed as are the CCR's. This home had two owners, so first one put the fence up and if the second one went and had another survey after he bought that house, the plat had the fence on it. So he is claiming that makes the fence legal, despite the CCR prohibiting it.

The owner-commissioned surveyor's plat, when recorded, is an official document. In this case, it is clear, convincing, and unquestionable evidence of a violation of the CC&R's that has been documented by a state-licensed professional and publicly recorded for posterity.

Normally I would argue that the second owner is an innocent victim of the first owner's willful violation and I would also argue to let the violation go since no one sees it. But this second owner really gets under my skin with this absurd argument that recording a plat showing the violation somehow negates the violation. He is lucky I am not on your board because my vote would be to burn his house down and salt the earth where his yard used to be just because his argument is so damn stupid. Cooler heads might settle for him to just remove the chain-link fence.

In answer to the original question, No, a recorded plat does not supercede the CC&R's. Each owner, including the first and second owners of the property in question, purchased their homes subject to the CC&R's. Recording a plat showing a violation of the CC&R's has no effect on whether the CC&R's may be enforced.

That's a very good point to observe on this issue, the violation itself is recorded! I hope to have the opportunity to say that to him just to see his reaction to it. Oh yes, all HOA's have someone like him, and would LOVEV to deal with them as you suggested!

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

He is lucky I am not on your board because my vote would be to burn his house down and salt the earth where his yard used to be

Ummm.... yeah. Its a good thing you are not in a position of power. LOL.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By SteveM9 on 05/16/2014 6:43 AM

He is lucky I am not on your board because my vote would be to burn his house down and salt the earth where his yard used to be

Ummm.... yeah. Its a good thing you are not in a position of power. LOL.

Maybe.

But a person who tries to justify a violation by claiming that the plat he himself commissioned and recorded supercedes the deed restrictions is advancing such a stupid argument that it requires an equally stupid response.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

As Larry said:

The owner-commissioned surveyor's plat, when recorded, is an official document. In this case, it is clear, convincing, and unquestionable evidence of a violation of the CC&R's that has been documented by a state-licensed professional and publicly recorded for posterity.

I love it. That is the answer.

Thank you for verifying to us that a violation exists.