Covenant with no HOA or ARB

This is same as the topic "Covenant with no HOA" but with little variant. I'm in contract with a suburban lot which has run with land covenant. As usual declarant left the place 5 years back without properly handing over the HOA/ARB or homeowners didn't showed any interest. Covenant calls for howeowners to elect ARB members to review and approve any architectural changes. The lot I'm in contract is the only vacant lot and I'm planning to build a single family home in it. I would like to have a waiver on certain items that is in covenant. If there is no process put in place what are the options I have?

Also the covenant reads as follow "No building shall be erected, altered, or permitted to remain on any lot, other than one single family, detached dwelling (the "Residence"), an attached or detached garage for no more than six motor vehicles. Additional buildings may only be constructed following the written approval of ARB."

Does the above sentence mean I don't have to get approval from ARB (Which doesn't exist) for constructing my single family home?

Also what "detached dwelling (the "Residence") means here? do they mean I can build one single family and one detached dwelling which is two homes?

Thanks Tim for quick response. Builder sold the last lot 5years back and he is no more responsible for anything in this community.

There is no HOA to send letter to, after speaking with dozen current homeowners they confirmed that no one is taking responsibility of HOA so no address to send it. And covenant didn't give any authority to home owners on approving any constructional waiver but they have authority to amend a covenant with 2/3 majority.

Covenant calls for homeowners to form an HOA or ARB which they failed to do so. Since there is no ARB as a lot owner I have noway to request a waiver which is the very purpose of covenant calling homeowners to form an ARB. Still if at all I need a waiver and current homeowners are not ready to form an ARB what would be my legal options.

Current homeowners did several structural modifications (like adding a pool, fence etc) without even forming ARB which is against the covenant. Can I pursue legal suit against existing homeowners for not having a forum to address any kind of request that needs approval.

Therefore, I expect that there is no common area (roads, easements, storm water retention ponds, etc.) or common amenities (playground, pool, trails, entrance signage, etc.) or services (trash/recycling, snow removal, etc.) that the association is required to maintain or provide and that there are no assessments.

If this expectation is correct, then (as I said earlier) providing you build your home in compliance with the covenants (as written) there should be no problem.


Standard language.

As I said, a covenant may not be waived. If you want to propose an amendment to the deed restrictions and gather 2/3 support, along with paying expenses (legal and filing) to make sure the amendment is properly worded, adopted and filed, to remove the covenant you don't want to comply with, go for it.

Just don't build until after that is done - or - make sure you build in accordance with the covenants as currently written.


Sorry if I didn't make this clear.

You plainly pointed out that the documents do not authorize anyone to waive a covenant.
Hence, you can not request a waiver - as the covenant may not be waived.

You must build your home in compliance with the existing covenants, as currently written, or risk financial expenses defending your action and possibly the cost of bringing the home into compliance if anyone (not just your neighbors) decides to take legal steps for you to comply with the contract (CC&Rs) you agreed to when you purchased your property.

That, or, gather support to properly amend and record the amended the CC&Rs PRIOR to building a home that wouldn't comply with the covenants as written.


Yes.

Just keep the following in mind:

If the item would have been prohibited by the CC&Rs, you can bring legal action and could very likely win (depending how long the item was there).

If the item would not have been prohibited by the CC&Rs, you can still bring legal action but would likely lose as the item isn't prohibited to have. In fact, worse case, the Court may rule that a receiver is required to establish the ARB and you and your neighbors will pay the receivers salary.


For legal options, you should consult an attorney.

If you want to insist on building something that does not comply with the covenants as written and don't want to go through the process of amending the existing document, my suggestion would be to have an attorney write up a document specifying that the undersigned has no objection to your plans. Then start meeting your neighbors and have them sign the document (motorized if possible0. This may protect you in the future if someone brings legal action for violating the covenants with your building plan.

What does this sentence means if only declarant can waive "In all other circumstances, other properties or lots may be withdrawn only upon the written consent of at least 2/3 of all owners and first mortgages"

Sara,

If you care to share, what is it exactly that you desire to have upon your home or property that won't be in compliance with the existing CC&Rs?

Sara,

Even if you don't share what it is you want, the options (as I see them) are as follows:

1) Comply with the deed restrictions as written and as you agreed to do when you purchased the property.

2) Gather support and bare the expense (as you are more likely to get the support if others don't have to pay) to amend the deed restrictions to either remove them completely from your property, remove them completely from all properties or to remove the one or two restrictions that are preventing you from building your desired home in compliance with the current document. I would suggest consulting with an attorney prior to gathering support so you have more answers for the questions you will be asked.

3) Petition the court to rule that the restrictions in full or only sections are no longer enforceable (effectively giving you the waiver you desire). Unless others are in violation, I doubt you will win, but it's an option. Again, consult with an attorney.

4) Build the desired home you want, knowing that it doesn't comply with the deed restrictions, and hope that nobody complains or takes action to enforce the restrictions. This option should only be chosen if you are also willing and able to financially afford the defense for your decision (if it comes to it) and, if necessary, the additional expense of bringing your home into compliance (if the court so orders).

4a) In addition to #4 above, be proactive for any possible defense and have an attorney draw up a legal document for as many members as possible to sign saying that they have no objection to your plans.

Option 1 is the easiest.

All other options have varying degrees of financial risk and effort on your part and no guarantee that they will be successful in providing you with the desired result.

I know that this isn't the response you were hoping for.
I hope it helps.

BTW - if you share what the actual issue is, I will give you my honest opinion on which option I would take (because if the risk is low, I might just go with option 4).

Thanks Tim for your time, effort and honest opinion. And I was not here to look for answers I wanted to get rather I wanted to know the options so I pick the right one (obviously the one easiest with less financial burden).

I have no other issue (if you feel there is something I'm not sharing), I'm even opt for hardieplank (it doesn't add any useful benefit as of today other than paying more). But I really love to have a milking cow for my family use (again no intention to sell or commercialize it).

Hi Sara,

Keep in mind that some of our posts crossed (for example, you gave specifics while I was writing my options post and never saw the specifics until after I posted those options).

As I said, I'd get the cow. Since the barn is built, just give it a few months after the neighbors go about their lives. I seriously doubt anyone will complain unless the cows are noisy or frighten any nearby horses (or cause dogs to become excited and bark like crazy). With 5 acres, I doubt many will even know you have them.

Good luck with your home.

Glad I could help.

Check back as others who have different experiences will likely add comments during the day.

Tim

SaraR3
(Virginia),

RUN
RUN FAST
RUN FAR

Why would you want to become involved in what will (sooner than later) become a legal quagmire?

You are free to lie in whatever bed you make.

BUT

Please do NOT 'bit*h and moan' later.

Best of luck

CAVEAT EMPTOR

sometimes even a PitA gets lucky