Question about identity of declarant as it relates to restriction issue

I have a question about who the declarant is, or rather, how I might find out that information.

My husband and I purchased a home in Michigan on 8/3/2016. Our deed is subject to the use restrictions of record. The restrictions were registered with the County's register of deeds in 2006. The document identifies the declarant as "Persons A and B, trustees, and their successors in trust and assigns (undivided 1/2 interest) and persons C and D, trustees, and their successors in trust and assigns (undivided 1/2 interest). The use restrictions state that "These restrictions may be amended by Declarant at any time until it transfers all of its rights" to the HOA.

The initial Declarants went bankrupt and their interests in the properties were transferred to a bank. The HOA established has been automatically dissolved by the state. The bank sold most of the properties to Builder A and some to Builder B. Builder A established a second HOA with the state.

The use restrictions state "only fences of a visually porous decorative nature may be erected and only in back yards...fences of a visually non-porous nature may be placed around swimming pools...but not to exceed six feet in height."

We wish to put up a privacy fence in our back yard. The privacy fence is consistent with other fences within the community (in other, separate sections of the subdivision, built by the initial declarants, but controlled under a separate master deed), and with a fence recently installed with a variance from the current HOA. The use restrictions don't allow for the HOA to make variances. We were told by our builder's realtor (who is running the HOA on his behalf) that we are not allowed to install such a fence, and that the owners who were allowed to erect such a fence were allowed to do so because they were the "first house done in the sub and was a year before and outside of the sub’s HOA establishing policies/communications therein etc".

My understanding is that a solid privacy fence would violate the "visually porous...nature" requirement. However, a wooden fence with small spacing between pickets or decorative lattice work would be "visually porous" in nature. Further, the restriction allows for visually non-porous fences to be erected around swimming pools. If we erected a swimming pool in our backyard, the use restrictions seem to indicate that we may install a privacy fence around the pool (and I would assert that our yard line is "around the pool").

In the past when I have suggested that the HOA/builder did not have the authority to enforce use restrictions not in the master deed (a disagreement about how we planted our lawn), the builder's agent advised that he could make "administrative policies and rules" in order to enforce the use restrictions. The master deed seems to indicate that the declarant can change the rules. So, I think I need to know who the declarant is to ensure that I can build my fence without the builder's agent later changing the rules and requiring me to take down my fence.

Any advice?

It appears that you are restricted only by Builder A's Declaration. This is discoverable by identifying the Declaration which Builder A recorded. Go to the county property records and look up the Declaration recorded by Builder A. If your Deed was owned by Builder A and the first deed delivered, that is your Declarant. Builder A was a successor-Declarant had the authority to alter the Declaration while in control of the property. Did Builder A amend the original 2006 Declaration?

Separate issue. Does your Deed Restriction also bind you to later-established Rules & Policies? If it does, then it might be an enforceable restriction that you agreed to. A recent court case in my HOA was lost because the Declarant authorized the corporation association to makes rules, but it did not not state that these rules were part of the contract (Declaration).

Rules do not have the power to overcome Covenants or be in conflict. Neither do "policies and communications". The nature and breadth of use restrictions will be stated in the Declaration attached to your deed. Rules must address a related Covenant, must be unambiguous to be enforceable and must be incorporated by reference as part of your contract.

Your option to use a non-porous fence around the perimeter of your property instead of an imaginary perimeter around your pool illustrates a poorly-written restriction. It is ambiguous and may be unenforceable because it does not specifically describe what a homeowner is expected to do. The caution is that the Association might decide to test case your action, especially if it has deep pockets and/or control issues.

In your case, I might give your specific plan to the ARC and see if they approve or, if they deny, on what specific restriction. A realtor's verbal bleat is not sufficient, especially the kind you describe. You need a written denial. How does it describe the dimensions of a pool enclosure? Is it no more than 3 feet from the pool deck, no more that x# feet from the pool water etc. In other words, test this yourself and put the HOA on record as to any objection and the basis.

The fact that the "rule" has been not enforced in the past is favorable to your issue. The fact that they do not have authority to waiver is beside the point; either they approved the deviation from a written restriction without Covenanted authority or they chose not to enforce. If they did the former (approved), there should be a written reason in the official records, which you can request.

Thank you for your reply. I agree that I am not entitled to an exemption because someone else got one. My plan is to meet the requirements of the use restrictions and build a picket-style privacy fence that has small gaps in between the pickets, thus remaining visually porous in nature. My concern is: if the builder is in-fact the declarant, he can amend the master deed at any point to not allow fences at all, for example. At which point, I would be required to remove my fence.

JohnC46-

It is my understanding that the initial builder did not transfer power to the HOA, therefore, it is still under declarant control. My question is: who is the declarant and how do I figure that out? The initial builder sold/lost it to the bank. The bank then sold a few lots to one builder and the majority to another builder. How can I determine if the declarant is one of the new builders, the bank, or the initial builder?