Declarant CCR violation transfer to new Owner?

JohnK43 (Arizona)
Posts: 3

Posted:

If a Declarant executes "Declarant Exemption" from Architectural Design Policies and other CCRs, at what point can the HOA re-enforce the CCRs and Design Guidelines on the new Homeowner(s)? For example, if the Declarant paints a home pink (violating the prescribed CCR and/or Architectural Design Policies' color palate), at what point can the HOA force the new Homeowner to change the color to one that is compliant with the CCRs?

NpS (Pennsylvania)
Posts: 4,216

Posted:

Below are samples of AZ declarant's exemption clauses I have seen. Both give declarant a lot of latitude during construction to have temporary structures, etc. Some attempt to relieve declarant of any liability.

But I have never seen one that would allow the painting of pink homes in violation of standardized colors. Please provide the exact wording in your documents. Thanks.

Declarant's Exemption. Nothing contained in this Declaration will be construed to prevent the Declarant or its agents from constructing, erecting, and maintaining model homes, sales structures, temporary improvements, construction trailers, or signs necessary or convenient to the sale or lease of Lots within the Project. Also, the use restrictions created in Article VIII of this Declaration will not apply to any construction activities of Declarant.

DECLARANT'S EXEMPTION. Notwithstanding any other provisions of the Project Documents, it shall be expressly permissible for the Declarant or its duly authorized agents, employees, and representatives to maintain during the period of construction and sale of lots such facilities, structures, and signs as are necessary or convenient, in the sole opinion of the Declarant,
to the sale of the lots, including, but without limitations, a business office, storage area, construction yards, construction trailer, model units, or homes and sale offices.

Sikubali jukumu. Read all posts at your own risk.

JohnK43 (Arizona)
Posts: 3

Posted:

The Declarant has EXEMPTION from the entire ARCHITECTURAL CONTROL (Article 5) of our CCRs.

Here is what it says:
Exclusions. The provisions of this Article 5 shall not apply to, and approval of the Architectural Committee shall not be required for, the construction, erection, installation, addition, alteration, repair, change or replacement of any Improvements made by or on behalf of Declarant.

My example of "pink houses" was to make the point that they can do whatever they want during construction. I did not mean that they actually painted houses pink. But they did other stuff, like super bright exterior lights, no/minimal landscaping, etc... all of which are under Article 5.

My question is: how long after the Owner takes occupancy of a Declarant-built home is the HOA stuck with any Declarant-installed non-compliant stuff on that home? FOR EXAMPLE: In theory, if the Declarant put JUST ONE bush in the front yard, and said "there is your Declarant provided landscaping" then there appears to be no recourse for the HOA to tell the Owner "Would you please get your landscaping complaint with the CCRs and on part w/everyone else's?" because the Owner can always say "My home and landscaping was built/provided by the Declarant, and my landscaping is grandfathered in, in perpetuity".

JohnC46 (South Carolina)
Posts: 14,265

Posted:

JohnK raises an interesting question. Along those same line what about exemptions granted by a BOD? The question is how long do the exemptions stand? I say if done properly they are in perpetuity.

We are about to take an issue on that goes back some 2 years. Each of our homes front yard has a Crepe Myrtle tree in it. They are all of the same variety but can be different color blooms. We have two side by side neighbors that say they got permission from the BOD to remove theirs and plant a dwarf Crepe Myrtle. We are going to sk they remove their dwarf trees and plant the type we all have. I am basing this decision on that not be arborists, we expected the new trees to grow as the original did and since this has not happened, they must be replaced. I expect to hear well the BOD told us we could. I am going to rebut this with they did not ave the right to do so. They were wrong and you are paying the penalty for their error.

NpS (Pennsylvania)
Posts: 4,216

Posted:

A very real problem. I suggest that you speak with a lawyer who is familiar with these types of declarant exemption provisions. I've never seen any from my state. And there may be only a few states where these provisions are popular.

The word I would focus on is "improvements". First look to see if it's a defined term in the definitions section of your document. If not, then is should be considered as a "term of art" as used in the industry, not necessarily as you or I would interpret it.

In the 2 examples I gave you, the exclusions were about specific "improvements" but it looks like those are geared toward "improvements" to common area structures -- not to the wholesale overriding of your architectural requirements on a grand scale.

What a mess. The resulting HOA-homeowner antagonism will plague you for a very long time.

Has the HOA been turned over to the homeowners yet or does the declarant still control everything?

Sikubali jukumu. Read all posts at your own risk.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By JohnC46 on 11/08/2019 12:43 PM
JohnK raises an interesting question. Along those same line what about exemptions granted by a BOD? The question is how long do the exemptions stand? I say if done properly they are in perpetuity.

We are about to take an issue on that goes back some 2 years. Each of our homes front yard has a Crepe Myrtle tree in it. They are all of the same variety but can be different color blooms. We have two side by side neighbors that say they got permission from the BOD to remove theirs and plant a dwarf Crepe Myrtle. We are going to sk they remove their dwarf trees and plant the type we all have. I am basing this decision on that not be arborists, we expected the new trees to grow as the original did and since this has not happened, they must be replaced. I expect to hear well the BOD told us we could. I am going to rebut this with they did not ave the right to do so. They were wrong and you are paying the penalty for their error.

Why would not being an arborist be a legitimate basis for reversing a board decision? I could see not allowing any more dwarf trees and grandfathering those already planted for the average life of these trees. But not much more.

Sikubali jukumu. Read all posts at your own risk.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By NpS on 11/08/2019 1:00 PM

Posted By JohnC46 on 11/08/2019 12:43 PM
JohnK raises an interesting question. Along those same line what about exemptions granted by a BOD? The question is how long do the exemptions stand? I say if done properly they are in perpetuity.

We are about to take an issue on that goes back some 2 years. Each of our homes front yard has a Crepe Myrtle tree in it. They are all of the same variety but can be different color blooms. We have two side by side neighbors that say they got permission from the BOD to remove theirs and plant a dwarf Crepe Myrtle. We are going to sk they remove their dwarf trees and plant the type we all have. I am basing this decision on that not be arborists, we expected the new trees to grow as the original did and since this has not happened, they must be replaced. I expect to hear well the BOD told us we could. I am going to rebut this with they did not ave the right to do so. They were wrong and you are paying the penalty for their error.

Why would not being an arborist be a legitimate basis for reversing a board decision? I could see not allowing any more dwarf trees and grandfathering those already planted for the average life of these trees. But not much more.

BAsically it makes their front yards look so different than the other 70 or so as to be obvious thus they are "not maintaining" the continuity of look we strive for. Our HOA does all front and side yard landscaping so people are not allowed to remove or add any landscaping without our permission. We do allow replacement trees/shrubs but with identical species (flowering colors can be different). We do allow potted plants, bushes, etc. on front porches and in front of garages but no planting. Simply put, it is "the look" the vast majority of our owners want and we try to keep it that way. One common comment heard from prospective buyers is this neighborhood looks so nice.

Each home has small backyard (30x30) that is enclosed via a 6ft high privacy fence. We allow anything in the backyard as long as it does not exceed the height of the fence (patio umbrellas the exception) so if you want to "play in the dirt" there than feel free. My next door neighbor grows tomatoes. Some are covered with pavers.

As aside, we are patio homes (1100sq ft to 1400sq ft) with no more than 25ft between them thus we cannot let landscaping run helter skelter as it would destroy the look.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By JohnC46 on 11/08/2019 1:25 PM

Posted By NpS on 11/08/2019 1:00 PM

Posted By JohnC46 on 11/08/2019 12:43 PM
JohnK raises an interesting question. Along those same line what about exemptions granted by a BOD? The question is how long do the exemptions stand? I say if done properly they are in perpetuity.

We are about to take an issue on that goes back some 2 years. Each of our homes front yard has a Crepe Myrtle tree in it. They are all of the same variety but can be different color blooms. We have two side by side neighbors that say they got permission from the BOD to remove theirs and plant a dwarf Crepe Myrtle. We are going to sk they remove their dwarf trees and plant the type we all have. I am basing this decision on that not be arborists, we expected the new trees to grow as the original did and since this has not happened, they must be replaced. I expect to hear well the BOD told us we could. I am going to rebut this with they did not ave the right to do so. They were wrong and you are paying the penalty for their error.

Why would not being an arborist be a legitimate basis for reversing a board decision? I could see not allowing any more dwarf trees and grandfathering those already planted for the average life of these trees. But not much more.

BAsically it makes their front yards look so different than the other 70 or so as to be obvious thus they are "not maintaining" the continuity of look we strive for. Our HOA does all front and side yard landscaping so people are not allowed to remove or add any landscaping without our permission. We do allow replacement trees/shrubs but with identical species (flowering colors can be different). We do allow potted plants, bushes, etc. on front porches and in front of garages but no planting. Simply put, it is "the look" the vast majority of our owners want and we try to keep it that way. One common comment heard from prospective buyers is this neighborhood looks so nice.

Each home has small backyard (30x30) that is enclosed via a 6ft high privacy fence. We allow anything in the backyard as long as it does not exceed the height of the fence (patio umbrellas the exception) so if you want to "play in the dirt" there than feel free. My next door neighbor grows tomatoes. Some are covered with pavers.

As aside, we are patio homes (1100sq ft to 1400sq ft) with no more than 25ft between them thus we cannot let landscaping run helter skelter as it would destroy the look.

In the situation you described, I would probably lobby for the HOA to pick up some small portion of the cost in recognition of the fact that the homeowners were given prior authorization to do what they did.

Sikubali jukumu. Read all posts at your own risk.

JohnK43 (Arizona)
Posts: 3

Posted:

We just turned over to Homeowner control. This is why it's now an issue. We'll be consulting with our atty. Finger's crossed!

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By JohnC46 on 11/08/2019 12:43 PM
We have two side by side neighbors that say they got permission from the BOD to remove theirs and plant a dwarf Crepe Myrtle. We are going to sk they remove their dwarf trees and plant the type we all have. I am basing this decision on that not be arborists, we expected the new trees to grow as the original did and since this has not happened, they must be replaced. I expect to hear well the BOD told us we could. I am going to rebut this with they did not ave the right to do so. They were wrong and you are paying the penalty for their error.

I think that's the way it should be dealt with. With that said, it's probably one of the tougher things for a BoD to do. Saying a previous board didn't have the right to grant an exemption and therefore we're rescinding it is bound to cause confusion and anger among homeowners (and not just the ones with the dwarf trees). Nevertheless I do think it's the right thing to do.

We've got an original homeowner who has a concrete patio in back of his house that is on common property. The homeowner claims the builder told him it would be OK. He's upset the BoD wants the patio gone. In truth, the builder had no right to violate the governing documents and construct any appurtenance to a residence on the common property. The homeowner doesn't fully understand this, and to the extent that he does he's claiming his patio is "grandfathered in" because the builder told him it was OK 20 years ago. A developer can't give away common property contrary oto the subdivision plat. I don't think even the BoD would be able to retroactively just give that patch of ground to the homeowner, either.

The 2017 board started the process to make that patio go away.

They agreed to pay for the removal (it's a 2" thick 25' x 15' slab) to appease some of the owners concerns, and they got bids for the demolition work. As the end of the year approached, they punted on selecting a winning bid and voted to table the matter and leave it for the new 2018 board to see the project through. The new board, however, never picked up the question from the table. They ignored the whole thing and refused to move the ball down the field. And that's where it stands.

Bottom line, neither a developer, builder, or Board of Directors have the power to affirm a variance or exception to anything that violates the governing documents.