replating land

Started by CjC • 5 replies • 930 views

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CjC
Posts: 210

Posted:

Does anyone have experience with dividing land and replating? Our docs state that the HOA board has the ability to approve or deny someone repalting and subdividing land. In our case, there is a chance a developer might buy a lot of land and try to divide it into many many many homes. We know that this need BOD approval and most of the community is in favor of denying the request. Would this open the BOD to liability if they deny it based on the community input? Would they need to provide a rational reason besides the community is against it? Technically it is dedicated green space with the county so they would first need to go to the county to get a waiver and we like the green space here, we don't want more homes using the roads, pools etc.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By CjC on 04/06/2018 7:01 AM
Does anyone have experience with dividing land and replating? Our docs state that the HOA board has the ability to approve or deny someone repalting and subdividing land. In our case, there is a chance a developer might buy a lot of land and try to divide it into many many many homes. We know that this need BOD approval and most of the community is in favor of denying the request. Would this open the BOD to liability if they deny it based on the community input? Would they need to provide a rational reason besides the community is against it? Technically it is dedicated green space with the county so they would first need to go to the county to get a waiver and we like the green space here, we don't want more homes using the roads, pools etc.

I see no liability problem. It is good that the Board is soliciting Member input, in the same way that City Councillors take input from constituents and then make a decision. Ultimately the decision is the Board's. I do not think a reason needs to be given, but if the Board wants to, it could say there are several, and among them is that re-platting and sub-dividing deviates from the general plan for the HOA.

I just posted in another thread about a similar situation at my former HOA. My former HOA is made up of about 1000 stand-along homes. The developer had long since turned the HOA over to member control; still owned some land within the HOA's legal boundaries; and had never built on this land. The plats are clear that this land is within the legal boundaries of the HOA and note it is subject to the HOA's covenants, rules, yada. When a second developer came along talking about buying the land and developing it for a small apartment complex, it got the Board's attention. The HOA's covenants disallow multi-family housing such as apartments. The Board held a meeting with members to take input. No members wanted the multi-family housing. The HOA informed the developers that it would not waive the covenants.

As a caveat, suppose your HOA had a rogue board; did not care about sub-dividing this land; and approved the re-platting and sub-dividing. If the rogue board did this, then it might face liability and/or a lawsuit, because what it is doing appears to me to be drastically changing the general plan for the HOA. Generally the courts say this is not allowed, because it is not what buyers had in mind when they read the covenants and agreed to purchase within the HOA. In short, a rogue board's waiving a significant covenant, that alters the general plan for the HOA, is a contractual violation.

FredS7 (Arizona)
Posts: 927

Posted:

In the U S of A anyone can sue anyone or anything about anything. Doesn't mean there is any significant chance of success.

If your community is set on saying no I would advise a legal consult to find the best way to say no.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

CjC

I myself would be nervous "fighting" a developer without legal advice. Would you all consider an alternative such as fewer homes leaving open space and increasing your revenues?

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Do your CCR’s note the number of Lots to be included in your HOA? Did the Developer in your CCR’’s potentially “Reserve” the right to add more lots?

In my state under the state statutes the Developer must “reserve” the right to add more lots above and beyond what has been noted in the CCR’s. An example would be here a developer built a subdivision and did not reserve the right to add more lots in the CCR’s. The developer owned other land next to the the prior subdivision built and approached the City (I was on Planning Commission) to build more homes and initially wanted to add to the prior subdivision. My comment was cannot do that without majority of owners from the prior subdivision agreement. The developer’s option was to build another subdivision with separate CCR’s.

However, potentially in your case if a developer purchases land next to your subdivision and if not to be added to your subdivision ... then that would be the City to approve. Not sure why you state might need BOD approval ... unless they want to add to your subdivision. Sorry ... communities grow and if you yourself were to purchase the land ... should you not have the choice on what you would want to build on land you personally own as long as your choice did not violate Federal, State, or Local Laws????

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By AugustinD on 04/06/2018 7:48 AM
As a caveat, suppose your HOA had a rogue board; did not care about sub-dividing this land; and approved the re-platting and sub-dividing. If the rogue board did this, then it might face liability and/or a lawsuit, because what it is doing appears to me to be drastically changing the general plan for the HOA. Generally the courts say this is not allowed, because it is not what buyers had in mind when they read the covenants and agreed to purchase within the HOA. In short, a rogue board's waiving a significant covenant, that alters the general plan for the HOA, is a contractual violation.

This is probably the best argument against doing it. I also agree that if the covenants give the board the authority to approve or reject the application, they have no obligation to justify their decision to anyone (although the members might like to hear it).

My subdivision was re-platted twice in its early years. Our CC&Rs incorporate the plats by reference. In fact, the first 2 amendments to our CC&Rs, adopted by the declarant, were enacted solely to include the 2 re-plats. Both re-plats required the written consent of all homeowners. At the time there were only 6 so that was not hard to do.

The answers are probably in CjC's governing documents in conjunction with state, county and local laws and regulations.

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