Deed restriction, variance

Started by AlissaN • 19 replies • 3564 views

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AlissaN (Ohio)
Posts: 7

Posted:

Hi everyone, we have a property owner asking for a 7 foot variance on a deed restriction, ( structure must be 30 feet from road right of way) They are building a structure that is 7 feet too close to road right of way. We have some board members leaning towards variance and some adamant that we cannot grant nor change a deed restriction without 2/3 approval of members. The problem is boards in the past have granted these types of vacancies. And know we as the sitting board have to decide if this is something we can withhold( variance) without fear of being sued. Any help or advice on this matter is great appreciated !!

MelissaP1 (Alabama)
Posts: 13,836

Posted:

You already have the fear of being sued so get over it. I would instead check with the city or county if they have rules on the set back. Why would they need such a large variance? Is it due to a land issue or aesthetics?

Former HOA President

TimB4 (Tennessee)
Posts: 21,059

Posted:

The Board typically does not have the authority to grant any variance to the deed restrictions. However, some deed restrictions do provide that authority. You will need to read them to find out. If they are silent on the issue, then the Board does not have that authority.

As Melissa said, regardless of what the Board does, there may be zoning issues that prevent such a variance.

Don't worry about having legal action taken against you. Worry about being able to defend any such legal action. The best defense is for the Board not to exceed their authority. If you are that concerned about potential legal action, seek a legal opinion on the issue.

AlissaN (Ohio)
Posts: 7

Posted:

This is a gated , closed community. The county, nor the city have anything to do with our roads. We maintain them. It is due to a land issue. Thanks for the good advice on seeking legal counsel before we reach our decision .

KerryL1 (California)
Posts: 14,550

Posted:

And as Tim points out, Alissa, carefully read your restrictions to see if the board is permitted to grant variances. Ours say we may.

But just because you're permitted to, doesn't mean you must. If your restrictions don't permit the board to grant variances then your previous boards were wrong.

What are the cons re: this variance? Seven feet does seem like a lot!

I'd think a legal opinion on this matter wouldn't cost a whole lot.

KerryL1 (California)
Posts: 14,550

Posted:

AlissaN (Ohio)
Posts: 7

Posted:

I have read deed restrictions, front to end. It does not say one way or the other on granting variances, it does require 2/3 majority to change a deed restriction. But once again, nothing on variances. Frustrating to say the least!!

NpS (Pennsylvania)
Posts: 4,216

Posted:

Hi Alissa

How many units in total? How many units have been granted variances in the past? Do you keep records of variances?

Sikubali jukumu. Read all posts at your own risk.

AlissaN (Ohio)
Posts: 7

Posted:

14 variances granted over the last 20 years, concerning same issue. 350 property owners. 250 in good standing

NpS (Pennsylvania)
Posts: 4,216

Posted:

rural? suburban?
single family homes?
avg lot size?

Sikubali jukumu. Read all posts at your own risk.

EllieD (Vermont)
Posts: 446

Posted:

AlissaN,

To understand better, would you be willing to post the exact words from your Documents (Deed restriction) that state that the structure must be 30 feet from road right of way?

Of the 14 variances, were they all for a 7 foot variance? For the same type of structure? And when was the last variance approved?

Thank you.

PitA
Posts: 1,416

Posted:

If the Covenants are silent on variances then the BOD does NOT, repeat NOT, have the authority to grant same.

AlissaN (Ohio)
Posts: 7

Posted:

Thanks for the information. Is this a state law or federal law,? I can not find anything on this, (state of Ohio) in all my searches , that pertains to variances being granted on a deed restriction, that does not explicitly allow or disallow in deed restrictions. Thanks god any help u can give me on this!

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By AlissaN on 06/23/2015 1:42 PM
it does require 2/3 majority to change a deed restriction.

Could you provide the exact language?

Sikubali jukumu. Read all posts at your own risk.

AlissaN (Ohio)
Posts: 7

Posted:

Yes I can. Will post once I get back to office tomorrow afternoon! Once again thank you for all the input on this

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

Posted By AlissaN on 06/27/2015 8:15 AM
Thanks for the information. Is this a state law or federal law,? I can not find anything on this, (state of Ohio) in all my searches , that pertains to variances being granted on a deed restriction, that does not explicitly allow or disallow in deed restrictions. Thanks god any help u can give me on this!

Its contract law. The contract could say anything, like no red sheds, and those are the rules you must follow. No state laws would discuss these things.

If granting variances is not in your CCR's, you cant do it. In this instance, the hoa would simply reply to the homeowner "variance denied. The board was not given authority to grant variances per the developer's design of the CCR's which was agreed to by all the houses in the HOA."

Your CCR's might discuss the power of changing the CCR's and may need 100% homeowners to agree. So if they do, you could suggest the homeowner work on getting 100% of the homeowners to agree to a variance voting process. If they get 100% of the votes, then the variance/appeal committee could vote on it.

Yep, takes time to do things the right way.

PitA
Posts: 1,416

Posted:

steve,

perfect wording

AlissaN (Ohio)
Posts: 7

Posted:

Thanks for the information,.

DouglasK1 (Florida)
Posts: 2,046

Posted:

Quote:

Posted By AlissaN on 06/23/2015 12:02 PM
This is a gated , closed community. The county, nor the city have anything to do with our roads. We maintain them. It is due to a land issue. Thanks for the good advice on seeking legal counsel before we reach our decision .

Alissa,

In most jurisdictions, even though the community is gated and the roads are owned by the association, county and state laws regarding setbacks and zoning would still apply.

Escaped former treasurer and director of a self managed association.

RichardP13 (California)
Posts: 3,868

Posted:

To take Douglas's point one step further, when the homes were originally built, they had follow some type of building code, setbacks, etc. I would say they got them from the same government agency as Douglas quoted. Thus, the CCRs were reflecting on the same codes that they built upon.

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