Single Lot Covenant

My wife and I were having a discussion and I made a comment that she disagreed with so I thought I would post the debate to see what everyone else thought.

I believe that if a property owner owns a property that is unencumbered by any other restrictive covenants, they could place a restrictive covenant on their own property. For example, if I own a property and want to create a covenant that says "No fences," I would file the appropriate paperwork, and then my house would no longer be allowed to have fences.

My wife on the other hand believes covenants and restrictions to be an agreement between multiple parties and that you cannot place a restriction on yourself.

Thoughts?

No you wouldn't sue yourself, but your neighbor might. If you add no fences to your deed and then you put up a fence and your neighbor doesn't like it, they can sue you for not following the deed restrictions.

PS. A fence restriction might also outlaw all pools in the future and insurance companies require fences for pools.

HOA deed restrictions generally allow for changes if agreed by a certain percentage of owners. In the case of a single lot deed restriction, the new owner would compromise 100% of the owners, so I would think they could change or remove the restriction.

Many years ago my husband and I bought a small home in the "tree section" of Manhattan Beach, CA.

We learned of a restriction on the deed before we closed escrow. There were four small oleander trees on the property at the curb at the street (no sidewalks then). The restriction was that we were to to remove them. The further rule was that the previous owners could come to the curb and water the trees (had an easement?). My word usage is incorrect, but, anyway, we never saw the previous owners.

I duno. Off the top of my head..... if the other guys did somehow renew the association they would be the master association and your association, of 1 house, would be a sub association. So I dont know how that scenario would help you.

Why would the renewed association become the master association? There is no such thing as renewal in Iowa once the association fails to renew on time. It would require starting over and every homeowner would have to approve thus making it a voluntary association. Just for discussion purposes can I form my own association of one home and the rest of the subdivision have their own association excluding me? I think that would be mighty interesting.

Sure, you can do it, but you would still be in the other association. Doesn't make sense to do so.

I don't think revitalization would automatically establish the HOA as a master association.

In my opinion, say I were to create a covenant stating that the property would not be subject to any other covenants or restrictions and cannot be forced into mandatory membership into a homeowners association, and then the HOA revitalizes their covenants and try to enforce mandatory membership, I would believe the single lot covenant to trump theirs because it was technically filed first.

Of course, I don't think that would stop them from pursuing legal action but I think their odds of victory would be slim. It would be like me joining a HOA then creating my own covenants invalidating their legal covenants.

Kevin

Can we assume you will be living in this home for the rest of your life? The reason I ask, is what buyer would want to take on all this crap?

I would leave the option up to any potential buyer. Here in Florida I know of many people who actively seek out HOA-free homes but have a difficult time finding one. I was thinking this has the potential of filling a niche market. Worst case is I sell and get out and leave the future homeowner to choose. I do plan on living in this property for a while - it is been in my family for nearly 30 years.

But a new micro-HOA isn't the same as your old HOA. Its just a new micro-HOA.

This was actually done in my neighborhood 40 years ago. Before the subdivisions were developed one of the restrictions placed on the properties from the previous owner was that a wax museum could not be built.

A wax museum!!!

I suspected that owner owned and operated a wax museum in the area and did not want competition.

Perhaps. More likely it's in addition to.

You're welcome to go ahead and try that through the courts.

Let us know how it turns out.

That is a very good question and one that would be very interesting to see in court.

I can understand the argument that revitalized covenants may be older and therefor take precedence, but I can also see my argument - that the original covenants expired and the effected property owners have the option to either exist with no covenants, revitalize their old covenants, or create new covenants.

Why I would see my single lot covenant to supersede revitalized covenants is that while the covenants expired, the law provides HOAs and communities with deed restrictions a method to revitalize their expired covenants. My understanding is that the expired covenants are different then the revitalized ones, meaning while the original ones may be from the 70s, the clock would start over with the new set, and that is because the revitalized covenants are not extensions - preserved covenants would serve that purpose. The law in Florida places guidelines on revitalized covenants, such as they cannot be more restrictive than the original or they can include less affected properties than the original. The process requires the a certain number of homeowners to initiate the process of revitalization, draft new and similar to the original covenants, and then once those covenants are delivered to all the property owners, they are voted upon. Revitalization just sets a lower threshold to be met to pass the new set of covenants. My covenant would require 100% approval and would run with the land for 30 years, in which it would require a notice of preservation or then expire.

If my neighbors decided to revitalize the original covenants they would have to draft new ones anyway being that my original covenants contain many provisions that are outdated and invalid, such as no clotheslines, satellite dishes, or people under the age of 55. They would also be screwed because of how the neighborhood was developed. The C&Rs were written in the 70s and the neighborhood was built but sometime in the 80s there was some kind of agreement made between a clubhouse and another developer to where that clubhouse would somehow become the HOA - not a covenant binding to the deeds of the property owners. There is no reference to the clubhouse or anything in the original covenants and restrictions. There are just a bunch of negative covenants (no fences, no satellite dishes, no clotheslines). If the HOA were to revitalize, they would box themselves into a corner, although I doubt that would prevent them from trying to impose their assessments and fines on everyone again. They are one huge liability.

Steve,

There was an interesting case a few years back in Iowa titled Chipman Homeowners Association vs. Carney. It has to do with CC&R expiration and the HOA's rights to collect assessments. The court ruled that assessments can not be collected because the CC&Rs were not renewed properly. It's an interesting case which I have discussed on this forum before and it has to do with road maintenance fees. And you are so right, it opens up a big can of worms.