Covenants waived unfairly by one-man board!

I live on a private road with 11 lots developed by one man. He does not build the homes, just sells the lots. We just build our home last year. There are covenants which state that all landowners will share equally in road maintenance. It has come to light that the developer has provided a written waiver of responsibility for road maintenance to a family who bought a lot last year. The lot was not purchased from him but rather from another family who had bought it first. Worse yet, it has been revealed that he has done this for two other lots previously. We have a $27k estimate for repairs and now instead of 11 sharing the cost, 8 of us will have to divide it. Believe it or not, one additional family bought a house in foreclosure from the bank and never were provided the covenant. They are decent people and will share in the maintenance anyway. No notice was given that any waivers had been granted when we bought two years ago (waivers were in place by then) and none since. Also he has allowed two homes to be built that do not meet the square foot requirement. Ideas please?! Thanks in advance!!

First off a home bought in foreclosure sale wouldn't get the covenants. Many states make it the owner's responsibility to turn over by/at closing. Other states make it the buyer's responsibility to be informed. The documents are PUBLIC documents filed at the court house for review. A Foreclosure sale would not have a former owner and documents would not be turned over.

It sounds like your still developer controlled. The developer is the one that develops the land for building. The builder could be the same person or different. You buy the lot from the developer and then you pay a builder to build on the lot. The developer is the one who puts the restrictions on the property with the covenants to conform to their idea of what kind of homes they want. They may want to restrict it to all ranch house 1200 square feet etc...

I do not know why the developer is not footing the bill for the road maintenance? Are you paying him your assessments? Are there assessments? It is unclear on your exact setup if your in a HOA. If you are, has it been turned over to the owners?

Need a bit more details on the setup to understand the waivers and owner responsibility.

Thanks PitA! Making contact with attorney today.

Larry,
The document was recorded by the county when he first started to develop the subdivision of 11 lots. In am interesting twist, my attorney is the one who wrote the Declaration of restrictions, covenants and obligations as it is called for the developer. It's a small county. We shall see what he has to say about enforcing it! I will post follow up when I get some info.

This is definitely a conflict of interest but sometimes in small counties with few attorneys that can be helpful if everyone is willing to play fair and try to resolve the problem. I have seen situations where the attorney represents both parties and becomes a mediator of sorts.

The big problem is that the developer sold you one thing and delivered something quite different. The CC&R's represent a contract between all the owners and the seller/declarant. By treating some buyers differently than others and differently than what was specified in the recorded CC&R's, the developer breached the implied-in-law covenant of good faith and fair dealing that is part of all contracts.

The developer is in a no-win situation. If he continues on his present course eight owners will file lawsuits against him and the other three owners. If abides by his own CC&R's he is likely to get sued by the other three owners.

BTW, the people who bought the foreclosure haven't got a leg to stand on. The CC&R's were recorded and could have been found with a little due diligence.

Because it's a contract that you freely entered into when you purchased the property.

I once saw similar language in a development outside of Dallas, TX. It was a deal breaker and we walked away. Had we signed, we would have basically been saying that those terms are fine.

Good advice! We have just used him for closings not anything that is complex. We have a referral to a sharp attorney to look at these issues. It may be a while before I have anything substantive to post but will try to let you all know how it works out.