Developer Changed CC&R's without my knowledge or concent

Started by JoshB2 • 15 replies • 1990 views

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JoshB2 (Indiana)
Posts: 6

Posted:

Hi Everyone. I am currently the only house in a newer subdivision in my area. I discovered that that developer of the subdivision has changed the CC&R in a way that will require me to make changes to my property and could cause my property value to decrease. In the previous CC&R's it is stated that the CC&R's can not be changed unless they are "signed by the owners of not less than 75% of the owners of the lots" of the subdivision. Is the developer permitted to make these changes since there are technically only 2 "owners" (me and them)? They have changed some of the CC&R's because they was violating them and added additional ones just to make my life miserable (seriously).

LarryB13 (Arizona)
Posts: 4,099

Posted:

Josh,

This is one of the many dangers in being one of the first buyers. The developer may have the clout he needs to amend the CC&R's as he wishes.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Josh,

There may be 2 physical owners but there may be 100 lots.

You get 1 vote for your lot.
The Declarant/developer may have more than one vote per lot (check your governing documents).

However, even with 1 vote per lot, using the 100 lots example, as long as the Declarant (developer) owns 75 of them, they have the voting power to make any changes they desire.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Josh

As others have said. If you read close it is more than likely (and very common) they have the ability to modify all the docs.

JoshB2 (Indiana)
Posts: 6

Posted:

Ugh. Not what I wanted to hear but I figured that was the case. He specifically added a restriction to target me. After building the house, I found out he has a reputation for pulling this kind of BS.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Josh

What did he pull?

JoshB2 (Indiana)
Posts: 6

Posted:

All of the lots are large (3+ acres minimum) and he now is farming the properties even thought it was against the restrictions. When I complained about it he changed the restrictions to allow it and also wrote in a restriction that states that the entire lot must be mowed which was not in the restrictions when i bought the property. As of right now i let the back 1 or so acres of my property grow as a prairie with many trees, shrubs, flowers and trails. He has sent me a letter telling me i need to mow it all down, which i won't. The front 2 acres are mowed and manicured. He is basically retaliating against me for complaining about the farming that was going on at 10:30 at night.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Josh,

Consult with a lawyer asap. There is a body of common law that says, in effect, that CC&R's cannot be made more restrictive or burdensome. That common law has not been adopted in all states, although the only one that I know that has specifically rejected it is Colorado.

Your developer sounds like a real piece of work and an attorney may recommend other courses of action you may take.

BobD4 (up north)
Posts: 1,002

Posted:

Josh B2 Indiana :

As BIG a fan as I am of farming & tractors, I find it tough to believe that something like a residential restriction use could be allegedly over-riden by a mere CCR change.

Did the Declarant persuade the planning authorities to legally suspend or even cancel the residential use restrictions ? For example, if you are on well water then close proximity to field applications could be hazardous to health eg pesticide spraying, fertilizer applications etc. A mere lot line to separate your children & pets from possibly large farm machinery ? Does your insurer know this ? I would look closely at whatever the Declarant is claiming, but please remember that farmers feed society.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Josh,

If you are up to date on your testosterone, you might try this:

First, see if there is a provision within the CC&R's for amending them. Normally it takes a specified percentage of owners or members to approve an amendment.

Second, go to the courthouse and examine the recorded deeds for your development. It is common practice to issue a deed only when a lot is sold. You may have the only deed issued for any lot in the development, giving you 100% of the power to amend the CC&R's. Because the developer likely has no deed to any individual lot, he is not an owner as defined in your CC&R's.

Third, draft an Amended Declaration of CC&R's abolishing the existing covenants in their entirety. Sign it to indicate your approval and attach an affidavit to attesting that as of this date you are the only person holding a deed to any lot in the subdivision.

Fourth, record it and wait for the fireworks to start.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Are we sure this isn't part of the county or city's restrictions the Developer overlooked? If the Developer is wanting to build they have to abide to the local restrictions. It may be that if your in city limits then your property can't be a "farm" or have certain type of animals. I'd check out your LOCAL laws first before you start stuff with yo9ur developer.

The developer is still in charge so the membership vote thing doesn't kick until AFTER the HOA is turned over to the owners.

Former HOA President

JoshB2 (Indiana)
Posts: 6

Posted:

Bob, I am not against farming at all. Our community is founded on farming. The subdivision is about 60-70 acres that has been planted with alfalfa (which is now allowed in the new restrictions BTW). I did inquire with the county about him doing this in an area zoned residential, but they said that alfalfa is not considered a "crop" and it is allowed. All of things you mentioned are things I am concerned about. He also changed the restrictions to allow the spraying of fertilizer and pesticides in the vacant lots.

Larry, I would try this but the guy who developed the lot is loaded and would come after me with everything he could. However, this is his first foray into residential real estate and I don't think he knows what he is doing.

Melissa, I think part of my problem could be that the developer is now making money from harvesting the alfalfa, that he has no incentive to sell the lots anymore. I hope this isn't the case but I am starting to think it is.

I am talking to a few of my friends that are in the legal field. None of them specialize in real estate, but I am hoping they can give me some guidance. I really appreciate all of the input from everyone. It has given me a few topics I can bring up if/when I get a lawyer.

GlenL (Ohio)
Posts: 5,491

Posted:

Cut down the grass in the back of your property and plant alfalfa, then you are in compliance with the new CC&R's.

Studies show that 5 out of 4 people have problems with fractions

JoshB2 (Indiana)
Posts: 6

Posted:

He also wrote into the restrictions that the alfalfa is only allowed on undeveloped lots.

JoshB2 (Indiana)
Posts: 6

Posted:

The only thing I have found that might help me is the restrictions state that any portion of the lot not used for structures or landscaping shall be seeded and cut. I consider the area that he wants cut as "landscaping".

TimB4 (Tennessee)
Posts: 21,059

Posted:

Tell him your farming hay but haven't found a buyer so you're simply letting it grow

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