Restrictions of use snafu!

Started by JeffreyH3 • 24 replies • 884 views

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JeffreyH3 (North Carolina)
Posts: 5

Posted:

Hello all, new to this forum but I would like to pose a question to get your input/opinion on the terminology regarding the C&R's in the subdivision I live in. This next few lines are written word for word as it appears in the C&R's:

Section 1. Use of lots Restricted to Residential Purposes.

No lot or portion thereof subdivided in accordance with section 10 of this Article V shall be used except for one single family residential dwelling, a guest house for bona fide, non-paying guests, and out buildings approved by the association.

---

We have a situation where a resident built a 12'x24' horse barn/stable on a improved lot. A fair number of residents are complaining saying the restrictions clearly state that you must have a "single family dwelling" first, prior to building an out building.

The discussion revolves around the use of the word "AND" in the last sentence....(and out buildings approved by the association).

Their position is that the word AND implies House and out building, and the others interpret this as...you can build a single family dwelling or a guest house or a out building with board approval, so you three options.

I feel the wording is poor and not very clear. My opinion is that if a single family dwelling was a prerequisite to any other structure being built it should be stated in the restrictions of use that way.

Anyway, lets me know what Y'all think. Jeff

TimM11
Posts: 354

Posted:

I agree with you. It's not worded in such a way that the SFH is a prerequisite for everything else, it's just listed first. Just like it's not required to build a guest house before an outbuilding.

The wording should be cleaned up, though, so that it is clearer.

JeffT2 (Iowa)
Posts: 880

Posted:

Here is one idea:
An outbuilding, by definition, requires a primary residence:

https://definitions.uslegal.com/o/outbuilding/

Outbuilding Law and Legal Definition

Outbuilding is a structure subordinate to but not connected with the primary residence on a parcel of property. This may include a shed, garage, barn, cabana, pool house or cottage.

GenoS (Florida)
Posts: 4,276

Posted:

A horse isn't a bona fide non-paying guest?

TimB4 (Tennessee)
Posts: 21,059

Posted:

I disagree.

There you go, you now have different opinions.

The Association should obtain a legal opinion.

BTW, was the barn approved by the Association or not?
If it was, that would have been the time to say a home needs built first.
If it wasn't, then this conversation is mute.

If two sides have differing opinions, then they either need to work it out themselves or seek a ruling from a court to determine which opinion is to be followed.

JeffreyH3 (North Carolina)
Posts: 5

Posted:

The barn was built without board approval. After several complaints from other residents the Board hired legal counsel to make a decision on whether or not a SFH had to be built first.

The lawyers opinion was that the outbuilding was fine without the SFH,the violation was that approval was not asked for and that a variance for approval after the fact would be in order.

The residents that don't like the horse barn sought their own legal advice which decided that a SFH was a prerequisite.

The fact that two different legal minds give opposing opinions only makes me believe the document is poorly written if it can be interpreted more than one way. So who is right??

RoyalP
Posts: 1,104

Posted:

Both sides.

Until all judicial appeals are exhausted.

Will the fight be worth the $$$$$$$$$$$$$$$$$ ?

IMO: let the issue die

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By JeffreyH3 on 11/13/2018 8:25 AM

No lot or portion thereof subdivided in accordance with section 10 of this Article V shall be used except for one single family residential dwelling, a guest house for bona fide, non-paying guests, and out buildings approved by the association.

The commas dividing the options along with the word AND notes that you can have “options” in your subdivision. You can have either or of the following on any lot::

1. One single family residential dwelling
2. A guest house (for non-paying guests)
3. Out buildings approved by the association

I agree with Tim ... when the Out Building was being constructed that was the time to address this issue and question. My other question would be “When was the building constructed???” Some States such as mine ... if the HOA has not addressed the issue or filed a lawsuit within a specified time frame then the HOA cannot later address the issue for items which are considered “permanent construction”. Essentially if you have ignored the issue for more than say a year ... you should let it go vs the high cost of legal fees and potentially loosing the battle.

JeffreyH3 (North Carolina)
Posts: 5

Posted:

Now let me provide you with some more info.

The president of the POA is the one that constructed the horse barn without board approval!!

The lot that the president built on was sold to him by the VP and I'm sure she knew he had intentions of building on the lot.

Why did he not get approval?? who knows, he should have known better for sure.

So to the residents against the outbuilding this looks fishy.

JeffT2 (Iowa)
Posts: 880

Posted:

Have you checked with your county or local government (zoning or planning department) if there are any laws or zoning concerning horses, barns on lots, outbuildings, or requirements for a house on those lots? Is a barn in conformity with the plan submitted by the original builder for your subdivision? Can you report the issue to the building department that gives building permits?

GlenM4 (Tennessee)
Posts: 141

Posted:

if the board approved the out building then its ok,. if they did not then it is not.. does not matter if a house is on it or not.

The CCR is giving options of what can be on a lot , an out building is an option NOT a addon.

ND (PA)
Posts: 792

Posted:

Let me also point out that in your verbatim CC&R excerpt, "out buildings" is plural. Clearly the intent is not to indicate that on each lot where an outbuilding is desired, the owner must actually build one single family house, a guest house, AND at least one other out building in addition to whatever the desired outbuilding may be.

But as you've found . . . depending on the client, lawyers can twist the CC&Rs to suit whatever interpretation is desired. You'll need a court ruling to make the ultimate decision for you.

NigelB (Texas)
Posts: 254

Posted:

Quote:

Posted By JeffreyH3 on 11/13/2018 6:33 PM
The barn was built without board approval. After several complaints from other residents the Board hired legal counsel to make a decision on whether or not a SFH had to be built first.

The lawyers opinion was that the outbuilding was fine without the SFH,the violation was that approval was not asked for and that a variance for approval after the fact would be in order.

The residents that don't like the horse barn sought their own legal advice which decided that a SFH was a prerequisite.

The fact that two different legal minds give opposing opinions only makes me believe the document is poorly written if it can be interpreted more than one way. So who is right??

As the board sought a legal opinion and got one, then that opinion prevails. The fact that other residents sought another opinion means absolutely nothing unless of course they wish to pursue it in court, in which case the judge would decide.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

One can argue that me, her, and him are three entities but that me, her and him are two entities. Me one entity, her and him one entity all based on an apostrophe. I think this was done away with and both are considered 3 entities.

Some are using the "and" as such.

RoyalP
Posts: 1,104

Posted:

you are referring to the 'oxford comma'

1, 2, 3, 4 and 5 (no 'oxford comma' making 4 and 5 into ONE additive entity)

vs.

1, 2, 3, 4, and 5 (contains the 'oxford comma' which separates 4 from 5 and makes them separate entities)

grammar 401

RoyalP
Posts: 1,104

Posted:

click the following link and read the article for a very educational law example re: terminology

oxford comma lawsuit

RoyalP
Posts: 1,104

Posted:

e.g.

w/o oxford: I’d like to thank my parents, Mother Teresa and the pope.

with oxford: I’d like to thank my parents, Mother Teresa, and the pope.

JeffreyH3 (North Carolina)
Posts: 5

Posted:

Thanks for the input.

Later in the Restrictions of use Article, section 11. states " Horses shall be permitted on all lots"

I believe North Carolina humane society and others with horses would agree Horses be provided with adequate shelter.

So in discussion with residents that oppose the horse and his shelter being in a "residential setting", when asked about the statement in the C&R's "horses shall be permitted on all lots" they reply is "sure once you have a SFH in place". When I ask where does it say that? reply it is assumed! C&R's clearly say "Lots restricted to residential use, Horses are not residential"

Another topic I have been looking into, differences between the legal definitions of "single family dwelling" and "guest house". Our C&R's state no single family dwelling shall have less than 1250 sq ft minimum finished, enclosed, heated living space.

When asked " how big does my guest house have to be?" they reply 1250, it is a single family dwelling.

I found some definitions online.

Single-family dwelling. (Term often used and defined in land use by-laws) House occupied by not more than one family; any detached building consisting of one dwelling unit that is occupied or intended to be occupied as the home or residence of one family. Irwin law

A guest house (also guesthouse) is a kind of lodging. In some parts of the world (such as for example the Caribbean), guest houses are a type of inexpensive hotel-like lodging. In still others, it is a private home which has been converted for the exclusive use of guest accommodation.

Appears to me they differ greatly, so any SFD regulations would not apply?...it's a different animal, cannot ASSUME it would have the same requirements.

Personally I hate assumptions...

If the intent was that a single family dwelling was required before any or building could be constructed I believe the C&R should have read....."No lot or portion thereof subdivided in accordance with section 10 of this Article V shall be used except for one single family dwelling. Any other structure built on a lot shall have a SFD existing on that lot prior to construction.

This is my first time living in a POA, not sure I like all the bickering.

RoyalP
Posts: 1,104

Posted:

..... has not ended in mine for (personal knowledge) 15+ years .....

BEST OF LUCK

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By JeffreyH3 on 11/15/2018 5:22 AM
Thanks for the input.

Later in the Restrictions of use Article, section 11. states " Horses shall be permitted on all lots"

I believe North Carolina humane society and others with horses would agree Horses be provided with adequate shelter.

So in discussion with residents that oppose the horse and his shelter being in a "residential setting", when asked about the statement in the C&R's "horses shall be permitted on all lots" they reply is "sure once you have a SFH in place". When I ask where does it say that? reply it is assumed! C&R's clearly say "Lots restricted to residential use, Horses are not residential"

You can never assume. That gets you making an ass / u / me. Courts do not go by assumptions they deal in facts and what is written.

Another topic I have been looking into, differences between the legal definitions of "single family dwelling" and "guest house". Our C&R's state no single family dwelling shall have less than 1250 sq ft minimum finished, enclosed, heated living space.

When asked " how big does my guest house have to be?" they reply 1250, it is a single family dwelling.

I found some definitions online.

Single-family dwelling. (Term often used and defined in land use by-laws) House occupied by not more than one family; any detached building consisting of one dwelling unit that is occupied or intended to be occupied as the home or residence of one family. Irwin law

A guest house (also guesthouse) is a kind of lodging. In some parts of the world (such as for example the Caribbean), guest houses are a type of inexpensive hotel-like lodging. In still others, it is a private home which has been converted for the exclusive use of guest accommodation.

Appears to me they differ greatly, so any SFD regulations would not apply?...it's a different animal, cannot ASSUME it would have the same requirements.

Potentially a Court will determine it is whatever size the owner desires as your CCR’s do not clarify the issue. If you want certain specifications then your owner’s need to make such specifications part of the CCR’s via proper meetings, votes, and amendments to the CCR’s. FYI ... I do not know of any guest house which is same or larger than the main residence. The purpose of a guest house is to be smaller for a short term guest.

Personally I hate assumptions...

If the intent was that a single family dwelling was required before any or building could be constructed I believe the C&R should have read....."No lot or portion thereof subdivided in accordance with section 10 of this Article V shall be used except for one single family dwelling. Any other structure built on a lot shall have a SFD existing on that lot prior to construction.

Amen ... Again, if that is what owners want for future you have the option of changing as long as you get enough votes as noted in your CCR’s AND State Statutes. Keep in mind some CCR’s written years ago might have voting requirements for Amending which could now violate State Statutes. So be sure to also check with your State Laws.

This is my first time living in a POA, not sure I like all the bickering.

Know the feeling. I have been chairing the ACC in my new HOA ... I have one member who ranted about an owner adding an additional overhead garage door to his garage/shop because original building plan only showed one door. It was nothing that violated the CCR’s except had not been approved with the two doors (and would have been approved with the two doors). Yes ... he should have submitted for a change and which we made him do so all is good now. Yet that same owner is now making excuses for another owner who moved a stupid metal storage container onto his property in complete violation of the CCR’s. What you and your fellow owners need to keep in mind is it does not matter who you know or who is your friend ... you have to treat everyone equally when you park your butt in a seat on any HOA BOD or Committee.

JeffreyH3 (North Carolina)
Posts: 5

Posted:

Thanks Janet. I'm on our newly formed ARC committee, we had our first meeting November 10th. the stuff i'm posting are some of the issues we have been discussing. Wish me luck!

Jeff

KerryL1 (California)
Posts: 14,550

Posted:

Kudos to you, Jeffrey, for volunteering. Volunteers for the board and committees really do help HOA communities. Committees, especially, can be paths to board service.

GenoS (Florida)
Posts: 4,276

Posted:

Yes, good luck to you, Jeffrey. Volunteers really do help. In my own semi-dysfunctional HOA we've had a recent increase in the number of homeowners who've volunteered to run for the board and serve on committees. These new volunteers have already resulted in an improved outlook for how to "fix" some of the community's problems.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By JeffreyH3 on 11/17/2018 5:50 AM
Thanks Janet. I'm on our newly formed ARC committee, we had our first meeting November 10th. the stuff i'm posting are some of the issues we have been discussing. Wish me luck!

Jeff

I which you the absolute best of Luck!!! Again, just be sure to treat everyone equally and how you would want your own property treated via the CCR’s keeping in mind that everyone in the future wants to sell for hopefully a profit ...

JenniferG11 (Texas)
Posts: 667

Posted:

Quote:

Posted By JeffreyH3 on 11/15/2018 5:22 AM
Thanks for the input.

Later in the Restrictions of use Article, section 11. states " Horses shall be permitted on all lots"

I believe North Carolina humane society and others with horses would agree Horses be provided with adequate shelter.

So in discussion with residents that oppose the horse and his shelter being in a "residential setting", when asked about the statement in the C&R's "horses shall be permitted on all lots" they reply is "sure once you have a SFH in place". When I ask where does it say that? reply it is assumed! C&R's clearly say "Lots restricted to residential use, Horses are not residential"

Another topic I have been looking into, differences between the legal definitions of "single family dwelling" and "guest house". Our C&R's state no single family dwelling shall have less than 1250 sq ft minimum finished, enclosed, heated living space.

When asked " how big does my guest house have to be?" they reply 1250, it is a single family dwelling.

I found some definitions online.

Single-family dwelling. (Term often used and defined in land use by-laws) House occupied by not more than one family; any detached building consisting of one dwelling unit that is occupied or intended to be occupied as the home or residence of one family. Irwin law

A guest house (also guesthouse) is a kind of lodging. In some parts of the world (such as for example the Caribbean), guest houses are a type of inexpensive hotel-like lodging. In still others, it is a private home which has been converted for the exclusive use of guest accommodation.

Appears to me they differ greatly, so any SFD regulations would not apply?...it's a different animal, cannot ASSUME it would have the same requirements.

Personally I hate assumptions...

If the intent was that a single family dwelling was required before any or building could be constructed I believe the C&R should have read....."No lot or portion thereof subdivided in accordance with section 10 of this Article V shall be used except for one single family dwelling. Any other structure built on a lot shall have a SFD existing on that lot prior to construction.

This is my first time living in a POA, not sure I like all the bickering.

If horses are permitted on all lots, according to the docs, I think that slam-dunks the issue. The docs do not say 'horses are not residential', those people are saying that.

A guest house does not have to be the same size as a SFM. That is silly. They are just making stuff up. Do your docs say approval must be gained in advance for guest houses and/or outbuildings?

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