waiver of a Covnenant restriction

I could use some advise, thank you! We live in a rural area, the Covenants of our LOA strive to ensure that the neighborhood will stay sparsely populated.

A landowner has requested that the board waive a Covenant restriction for the installation of a sink with running water in their recently built additional structure. This structure according to the restrictions in the Covenants cannot be used as a "habitat" since only one home is allowed on smaller lots. (You can have a workshop structure however.) The covenants are very strict in the definition of a "habitat" as it states that not only can you not install a kitchen,or toilet you can't install "running water" so a sink is not acceptable.

In support of our Covenants we denied the request for the installation of a sink with running water, however the landowner is challenging our decision. Recently our attorney told a director that since the new structure (workshop) is not intended to be used to live in a judge may rule that a sink with running water be allowed and we MAY lose in a court of law; because a sink with water does not mean it is a home. Also, there is the consideration that this restriction is overly restrictive. Therefore for this reason too it may not be upheld in a court of law, so it sounds like our attorney is suggesting to waive the restriction which would certainly set precedent.

Although I believe the Covenants are overly strict on this issue, as a director I feel it is my duty to support and defend the Covenants as they are written. This article was influential for me. http://www.cohoalaw.com/349408-print.html

To further muddy the waters, the "structure" in question was intended as an apartment originally, after the board told the landowners they could not have an additional apartment they complied and altered the structure to be a workshop, however they went ahead with their plans to install a septic field. This septic field can never be operational according to our CC&Rs. Our attorney told us we have no rights to inspect the property in the future to assure that the landowners do not hook up the septic field to their new structure.

So really 3 questions.

(1) I realize some covenant restrictions are held as being unreasonable and a judge might rule in the favor of the landowner, is the restriction not allowing running water to be installed in a workshop unreasonable? So unreasonable a judge would rule against the association? Is our attorney right?

(2) Even if he is right about a judge possible ruling against us for just the installation of a sink with running water wouldn't the judge (if he/she where a good and fair judge) consider the past behavior of the landowners who now want a sink with running water and just happened to have a septic field that will not be used?(They dug up the ground and installed a septic field never intending to use it.)Wouldn't the judge take also into consideration that the board has no policing mechanisms at its disposal? The only mechanism the board has at this time to help ensure that the structure in question is not eventually made habitable is to strictly enforce the Covenants regarding the installation of running water. Any lawyers or judges out there, how would you rule?

(3) We do not have the attorney's statement in writing, I would like to have this statement in writing because if we do choose to waive this restriction the reason will be because of his advise.

My thought is that a better course of action, would be for the landowners to pursue amending the Covenants and changing this restriction legally, although difficult it is feasible that this restriction could be voted on and changed.

I myself would not have any problems in granting a waiver for a sink.

Robin,

Larry is correct. Unless the CC&Rs specifically grant authority to the Board to waive a covenant, the covenant may not be waived.

However, rules and Architectural guidelines that are adopted by the Board may typically be waived (unless they are recorded as part of the CC&Rs)

I understand your concern - Gee, once the individual gets water to the property, what prevents them from remodeling the inside of the structure to an apartment without the HOA's knowledge?

However, as your attorney has advised if it goes to court, you will likely lose (as it's not an unreasonable request).

As Larry has pointed out, you need to identify what exactly is prohibited and what document makes it prohibited. Once this is known,you will have a better sense on how to proceed and what your options are.

>our attorney told a director that since the new structure (workshop) is not intended to be used to live in a judge may rule that a sink with running water be allowed and we MAY lose in a court of law

And a judge MAY rule in your favor too. Anyone who says they know with absolute certainty how a court will rule is dreaming.

Since the history is that the owners have attempted in the past to make the structure livable a hard line seems to be warranted. And the HOA could always revisit this if the owner actually follows through and files suit. Waiting to see if he puts up the money to do this will test his seriousness of purpose.

Hi Robin
Thanks for the covenant language. It's very limiting, and IMO that's good for enforcement purposes. The second clause just means that the rule is still enforceable even if there was a prior failure to enforce.

Everyone who purchased a lot did so with the understanding that development would be limited by the "no habitat" clause - not only the person who wants to make the changes but everyone else. Everyone else has a right to rely on that restriction.

What your lawyer apparently didn't tell you is that you open yourselves to a lawsuit from another homeowner if you don't enforce it against the person who wants the changes.

And yes, if it does go to court, you will have the opportunity to bring up the prior behavior of the person who wants the changes.

Robin,

Based on what you provided, I agree with NP. The language is plain enough and therefore should be enforced.

Can be enforced is one issue. Granting a waiver for a reason is another issue. I say an auxiliary/out building with running water is not an unreasonable request. Being sure it is not an end end run for a live in space should be easy enough.

Giving an inch is not giving a mile.

Is it an actual SEPTIC field designed for sanitary waste

or

merely a leaching field for 'grey water' ?

The bottom line is Robin does not trust this owner and that in itself might be the answer to putting every roadblock they can in the way. I have no issues as long as the Covenants are clear as ala no running water. I said I might consider waiving it but with the distrust, I can understand them not doing it.

May a detached workshop contain a toilet facility ?

Y'all are travelling a slippery slope.

On a more rational note:

I believe an exterior hose bib would have running water.

Are out-building hose connections prohibited?