Change square footage requirement incovenants

The courts have said that covenants can only be amended when the amendment does not destroy the general scheme or plan of the development. The reason for this is that the Covenants are a contract on which people rely when they buy into a HOA. They should not be changed capriciously, even when property amendment procedures are properly followed (so say the courts). I tend to think a court would say reducing the square footage requirement by 25% does tend to destroy the general scheme and plan for the development.

This court case talks about the case law in several states supporting this contention: http://law.justia.com/cases/new-mexico/supreme-court/1991/18798-0.html.

Here's a case where a HOA member asked for court approval of a home that was about 50 square feet short of the covenants-required 1100 square feet: http://law.justia.com/cases/north-carolina/supreme-court/1989/260a88-0.html . The court said no.

What can you do? Bring this legal reality to the attention of other members. Wait for the vote. If the amendment passes, write a polite letter objecting, using the language from the courts. Keep elevating your objection to the point that you present the board with a letter of demand. At this point, you will have to decide whether you are willing to take this to court.

I would contact your local Attorney General and State Attorney General to see if that is potentially Real Estate Fraud.

In my state unless the developer "reserved" the right in the CCR's to change the square footage and disclosed to both the Buyer and their Secured Creditor of that right via the CCR's then they cannot change. Also, I recommend reading your State Laws for both HOA and Real Estate. In my state a law for Real Estate notes that a Grantor (a.k.a. Developer) selling real estate to a Grantee (a.k.a. Consumer) cannot change a contract (a.k.a. CCR's) at will. Essentially the developer in beginning could choose anything they wanted to build with no limits. However, after they made their choice and put it in writing they cannot later, if any change was not disclosed, turn around and DEFRAUD Owner's and Secured Creditors (mortgage lenders) after going out fishing for consumers and lenders to expend large sums of money to purchase properties based on what they have expressed and disclosed.

There are a few states which would allow a developer to get away with this ... and I would say shame on them!!!