Setback Issue

A homeowner wants to sell but his buyer found out that the back porch encroaches on land behind the house which is owned by a farmer, and not in the community. The homeowner is requesting a letter from the H.O.A. stating we wouldn't have an issue with this. We advised him to seek out advice from his real estate attorney. Note, this home was built in 2005 and this homeowner purchased in 2015. He says he knew about the setback issue-it is 10 feet over, but he wasn't concerned. I am reluctant to ask our attorney, unless we can ask the homeowner to pay any legal fees.

Even if the H.O.A. has no issue with this encroachment, the farmer may have if/when he wants to sell his land. No idea why the H.O.A. back in 2005 didn't pick up on this setback mistake, but we are stuck with it.

Any advice?

Debbie

Thanks Augustin. The back porch area and all of his back property in question is not on common property and responsible to homeowner. His reasoning is because the H.O.A. has setback restrictions that we should state our position to alleviate any prospective buyers concern that the H.O.A. won't move to have the porch torn down to be in compliance with setback requirements. I agree with you on putting the responsibility back on him.

I think this issue is distinguishable from the issue of encroaching on the farmer's land.

If the Board asserts that the HOA will not enforce the setback, then it is violating the covenants in a few ways.

I think I would recommend that the Board respond with something like the following:

Dear Mr. Jones,

All homeowners must comply with the covenants.

The Association can offer no further assistance to you on this matter.

Sincerely,

Board of Directors

If this homeowner subsequently raises related issues, consider consulting the HOA attorney.

I think there is more HOA involvement in resolving this than has been identified or discussed.

The patio violates the setback requirements. I believe the HOA should address that issue, which, although not clear, is what I think the OP is getting at, even if he does not realize it. However, the HOA can say nothing about the encroachment onto the adjoining property, only that the setback requirement has been violated.

In my opinion, the Association should consult with its attorney, at its sole expense, as violation of the setback has nothing directly to do with the pending sale although it is related, regarding what to do to address the violation of the setback requirement.

I do not recommend the HOA allow this sale to close without some documented resolution of the setback matter.

As an aside, I cannot imagine the title company would allow this sale to close without addressing the encroachment onto the adjoining property without surveys, deed modifications, etc. Already enough time has passed that some kind of easement onto the farmer's land may have been created.

Now that I think about it, this was a title defect when the present owner purchased the property. He should consult with his attorney regarding that matter and go back against the title company which managed the previous sale in 2015.

George, my belief the HOA should be concerned about the encroachment of the patio on the setback. If that is what you are saying, we are in violent agreement. Often setbacks are in place to reinforce utility easements. The local electric company or telco would not be any too happy to find a concrete patio slab over a cable run.

Encroaching on the adjoining property is an issue between the seller, buyer, and Farmer John next door.

Violation of the setback requirement is, from what has been posted, a violation of the Association declaration or some similar document and should be addressed before the sale closes.

I am not familiar with other North Carolina processes which is where the OP is apparently located. In Texas, if I indicate a violation of Association documents or rules exists on a property which is under contract, and so note the Resale Certificate, the title company will not allow the sale to close until the Association signs off that the matter has been addressed to its satisfaction.

The reason I avoided the issue of whether the Board/HOA should issue a violation notice is because I suspect

-- this one homeowner is not the only one in violation.

-- the homeowner bought the house in 2015 with no notice of any covenant violation. It is possible North Carolina requires such disclosure prior to sale.

-- enough time may have passed that a HOA attempt to enforce the covenant is defensible via laches; abandoned covenants and more.

It sounds like a can of worms right now.

I look forward to Fred's elaboration. I am betting it will be amusing.

North Carolina appears to require sellers to complete a Residential Property and Owners' Association Disclosure Statement. See https://www.ncrec.gov/Forms/Consumer/rec422.pdf. Among other things, the seller must provide the buyer with the following info and/or answers to the following:

-- Is the property to be conveyed in violation of any local zoning ordinances, restrictive covenants, or other land use restrictions, or building codes (including the failure to obtain proper permits for room additions or other changes/improvements)?

-- The name, address and telephone number of the president of the owners’ association or the
association manager.

Because of this statutorily-required Disclosure Statement, now the homeowner-seller here has the lawful right to ask the HOA whether his home is in violation of any restrictive covenants.

Fred's board now has to meet and decide (perhaps with an attorney's help): After 15 years, is the Association now going to declare the homeowner's porch is in violation of the setback covenant? Are there underground utilities and accompanying easements that are a concern (good catch, BillH10)? If the HOA waives enforcement of the covenant in this case, are there other homes for whom enforcement of the covenant should be waived (because the HOA has no legal leg on which to stand to enforce the covenant)?

The time has come for the HOA Board to pay an attorney for help. And no, whatever the HOA pays the attorney may not be passed along to the homeowner.

What about adverse posession? If Farmer John hasn't raised a stink in 15 years and someone else has constructed improvements on the land, it's not unheard of that Farmer John could lose that piece of his property. State laws vary widely on the subject. And it is possible that the setback restrictions might take precedence of the improvement was constructed improperly.

My wife Debbie posted this topic. She is board president, I'm on the finance committee. We are working together to address this issue. The comments and advice so far are very helpful.

We will check the HOA archives to see if any board previously addressed this encroachment. The way the lots and homes are laid out, this situation is unique to this one home. Sounds like even though this involves only one homeowner, the feedback is the HOA must pay the legal fees if we use the HOA attorney for assistance, so I think we are clear on that.

We see three separate issues: 1) the home does not comply with the setback requirements in the covenants, 2)it does not comply with the county zoning setback requirements, and 3) there is the issue with the farmer next door. The HOA will only address issue 1. The owner knew about the encroachment but purchased it anyway. He says the farmer is fine with it. He is now selling and has disclosed this encroachment to a potential buyer and it killed the deal. He wants to avoid this problem with future buyers with a letter from the HOA stating the HOA won't take action regarding the infraction with the covenants. We don't feel comfortable doing that. There is nothing in the covenants permitting variances and the board cannot selectively enforce the covenants, but the issue has existed for 15 years, so demanding the owner remedy the issue now sounds aggressive. The community is in a pretty rural mountain area and this lot is at the back corner. The owner could try to buy a strip of land from the farmer to solve it. Looks like we need to consult the HOA attorney.

ND asked for the language from the covenants. I pasted that below.

Setback Requirements. No building shall be located on any Lot nearer than i)
twenty (20) feet from the front or side street road right of way boundary lines which adjoins a
Lot; ii) ten (10) feet from the side Lot line; or iii) twenty (20) feet from the rear Lot line. Any Lot
located on a cul-de-sac shall be measured fifty (50) feet from the center point of the cul-de-sac.

Fred

Fred, thanks for the verbiage in your docs.

Question . . . What exactly is the structure that is built? You mentioned "porch". Is this an enclosed addition to the home (with flooring, walls, and roof)? Is it a deck? Something else?

Asking because the setback language in your covenants talks of "No building shall be located on any Lot nearer than . . ." I would look up the term "building" in your docs to see if it is defined. Is it talking of a "building", a "structure", or the act of building? There could be some wiggle room in here depending on what type of structure the porch actually is.

I'd also question what went in to the approval of the original structure. If the original owner submitted something for approval and the Board at the time unknowingly approved it while it wasn't in compliance, or if the owner submitted one thing and then built something else.

Regardless, I think the HO has little responsibility in regard to the whole situation. If the adjacent farmer is ok with the structure as is, then documentation from the farmer stating his position should be obtained.

I think the question the homeowner is asking is the porch okay regarding the setback requirements of the HOA and will the HOA pursue any action against the homeowner. The homeowner is also going to have to get acceptance from the landowner and the local zoning board. I agree I would be looking at the title insurance company if I was the homeowner.