CCR Waiver

A member of our HOA is requesting a waiver of our CCR, claiming a disability makes it necessary.

I had read somewhere that there is a way to attach a CCR waiver to a deed, so the next owner would be required to undo the change and bring the property back into compliance with the CCR. I haven't been able to find any information on how to do this. Is it possible to do this?

What Kerry said. I can't imagine needing a CCR waived because of a disability - what is this homeowner trying to install? For example, if he/she needs a ramp for a wheelchair, wouldn't an exterior change request be enough and you process that the usual way (maybe the person is using the wrong language to describe what he/she really needs).

If it's an exterior change request and the owner provided a doctor's letter certifying the need, I would think the board would approve that. Your approval letter can then state if the home is ever sold or transferred, it must be removed.

I am new to the Board, and no one has a clue how to handle this situation.

He wants to remove a brick patio wall; says the patio wall it makes it impossible to enter through his kitchen door. The CCRs specifically prohibit moving walls. It would also make his house look significantly different than all the others. He does not need a wheelchair, and has not stated the nature of his disability.

If the approval letter states that the wall must be rebuilt if the house is ever sold or transferred, how does the HOA enforce that?

I agree.

Surely your board requires some sort of confirmation from a legitimate of the man's disability whereby he must remove a wall, right, Aaron? I, as hinted above agree with Pain & JohnC that your board may not cave on covenants just because an owner wants you to.

With Tim, is this a partial wall? What is the exact wording of your CC&Rs on this topic??

I'd say you also must get your attorney's opinion. That's what we did when an Owner insisted his parking space was too narrow to accommodate his disability & requested a space in our Visitor Parking area, which opposes our CC&Rs. He brought a letter from his chiropractor and we got an opinion from our HOA attorney too.

Is this actually true? In Florida there ia a "Disclosure Summary" that must be presented to the buyer by the seller, not the HOA, that says the home is in a community that has a mandatory HOA and assessments. The HOA has no duty to present the disclosure summary to the buyer. There are also "Estoppel Letters" that a buyer can purchase that will reveal any outstanding moneys owed to the HOA or existing violations that have been noticed to the owner (seller). But not every buyer chooses to obtain an Estoppel Letter, in which case how would they know?

So how does an HOA get a piece of paper on the table at a closing? When is the HOA's opportunity to communicate with the prospective buyer before the sale? Some owners here recollect how they were made to sign documents at their closing in which they acknowledged that they had read the governing documents and the rules & regulations of the association. As near as I can tell, those signatures would have been required by their realtors looking to cover their butts. There's certainly nothing in our governing documents or the state statutes that require such an acknowledgment at closing.

In some cases (like private sales) the HOA is not even aware that a home is being sold until the new deed is recorded with the county. It's rare but it does happen. There have been 3 or 4 sales like that in my community over the last few years.

A couple of us spoke with our HOA attorney back in the spring and asked about this specifically. The attorney said the association can make whatever agreement it wants with a homeowner, but unless it was part of the recorded documents there is no way it will be binding on a new owner. Once an owner is no longer a member of the HOA the HOA would seem to have little recourse against them.

I would like the Board to talk to a lawyer on this topic, but I feel it is unlikely to happen. I suggested talking to a lawyer earlier this year when a resident challenged one of the existing amendments to the Bylaws, but the rest of the Board felt it would be too expensive.

The Board is likely to approve the wall removal. I will attempt to get the requirement that it be rebuilt when he moves out added to the approval, and ask that it be added to any future disclosure statements about the property.

That would make you an astute and savvy buyer, Tim. When we bought our home here we knew we were getting into an HOA and the then-current monthly assessments, but not much else. We also received, after a fashion, copies of the governing documents. They weren't current, but the changes that had been made subsequent to the versions we received weren't germane to our decision, in hindsight.

We won't make that mistake again and we do consider ourselves very fortunate that we didn't parachute into the middle of a disaster area. If we ever purchase in another HOA we will leave no stone unturned in ferreting out every relevant detail about the association and the home/previous owner's status within it.

I agree with the suggestion that he just wants the wall gone, and is using a disability as an excuse. The Board is intimidated by the suggestion of a lawsuit, and I think will allow it. I'm trying to find a way to mitigate the long term damage to the HOA.

Geno-
I've only been the president for 3 years now and in that time 3 homes have been sold. Each time we were asked to fill out documents. One stating what the assessments are and whether or not there are capital assessments, and bla bla bla, and the other stating whether or not the home is compliant and current on assessments. So it must per state as said.

I don't like filling it out. There is one rule in our restrictions that has to do with tanks above ground. In order to certify the home is in compliance I would/should have to schedule an inspection of the inside of the home. That goes against my core beliefs.

In Florida information about monetary obligations and outstanding violations on the property would be communicated in an Estoppel Letter (aka Estoppel Certificate). Prospective purchasers obtain this from the association and the buyer is entitled to rely on the information it contains for 30 days. The association may charge a reasonable fee to issue an estoppel letter (up to $250). Nothing requires a buyer to obtain such a letter. It would be foolish not to, but every once in a while a buyer does not. When requested, the association (this is usually farmed out to the management company) has 10 business days to provide it. There are provisions to legally compel an association to issue a letter, and the penalty for not meeting the deadline is that an association may not charge for the letter.

The ACC is a committee of the BOD and any reviews or proposed approvals should be submitted to the BOD for final approval. Keep in mind within an HOA the Buck Stops with the BOD. If an owner ever sues for anything they will not sue the ACC ... they will sue the HOA which the BOD controls.

An example would be your local city which may have a Planning Commission to review items. Those items are then given to the City Council with the Planning Commission votes on whether they approved or not. However, the City Council can if they choose OVERRIDE the Planning Commission and approve an item which the Planning Commission did not approve. The same thing can potentially happen with an HOA BOD unless your governing documents and State Laws dictate otherwise.