Home erected against Covenants

Appeals courts have heard a fair amount of disputes involving covenant wording about the types of homes allowed in a HOA. In my opinion, your board should tell an HOA-specialized attorney what you want for a proposed amendment to the covenants and also what you want in this variance letter. The variance letter should meet some legal standard set by either the covenants or case law.

Amending a Declaration of Covenants (CCRs) is expensive and often takes a year. Figure out if there are other amendments on which you want the members to vote. Present it all as a singled proposal.

It's also possible the attorney will have a better solution.

FWIW, I agree that, after 18 months, any Board effort to get rid of the double wide would be expensive and possibly, also legally wrong. These sorts of mistakes happen. I will say if the covenants are clear that homes need to built on site and not hauled in, then I do not think much of the Owner who pulled this stunt. I hope whatever is written up, for this Owner's file, does have the HOA attorney's signature on it and, while granting a variance, the letter also includes a strong warning to obey the covenants in the future.

I think this owner has made the board's lives miserable and increased the possible liability of the HOA.

Here is how it is written in our Covenants:
(6) Not more than one single family residence shall be erected on a lot. All structures built or installed on the lot must be new. No homes or units older than six months may be installed on the lot. Residences shall contain a minimum of 768 square feet for a single story or ranch style residence with a minimum of 20 feet on each side and a minimum of 1,200 square feet for a two story residence. Said square foot minimum is of living area, excluding basement, garage, porch, carport, deck and overhanging eaves. All exterior construction must be completed and closed in within 12 months of the commencement of construction. No exterior siding of masonry block or cinderblock shall be permitted. Guest Homes are permitted provided they comply with the size and siding requirements and that they are not occupied on a permanent basis. Single wide Mobile Homes are not permitted.

Then, within the first year of writing, the original land owner amended it, but it was left on the last page as an amendment and never fully updated the document.

Here is the amended Use Restriction
ARTICLE IV PARAGRAPH (6), Not more than one single family residence shall be erected on a lot. All structures built or installed on the lot must be constructed on the premises. No mobile homes or homes maybe be moved from other locations and installed on any lot. Residences shall contain a minimum of 900 square feet for a single story or ranch style residence with a minimum of 20 square feet set back on each side, provided, however, there shall be no building set back line from the line of the United States Army Corps of Engineers line. Each two-story residence shall have a minimum of 1,200 square feet. Said square foot minimum is the living area excluding basement, garage, porch, carport, deck and overhanging eves. All exterior construction must be completed and closed in within 12 months of the commencement of construction. No exterior siding of masonry block or cinder block shall be permitted. Guest homes are permitted provided that they comply with the size and siding requirements and that they are not occupied on a permanent basis.
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I do not understand why, when they amended this section, they did not replace/update the text within the document. It only adds to the confusion.

I do understand the difference between Modular, Manufactured and Mobile.

The lot owner stated a Modular home when it is definitely a double wide mobile home.
we they being deceitful? I have no idea.... but it is something we now need to deal with and clean up the Covenants so this can't happen again.

But people often use the names interchangeably, adding to the confusion. The covenants in communities that allow these types of homes should include precise definitions so that people understand their obligations (this would be a useful amendment if the definitions aren't there now).

TereseS, thank you for posting what the covenant on this says. This helps with my (and no doubt others') understanding.

-- Are all signs that the original land owner properly recorded the amendment with the county?

-- I would be interested to learn if a HOA attorney thinks the amendment was properly recorded et cetera and so valid.

-- I do wonder if a HOA attorney might tell you all to enforce the covenant (amended version) against the Owner. This site talks about covenants that have not been enforced for many years sometimes (e.g. if other conditions are met) falling into the category of being "legally abandoned." This would mean a court would not support the enforceability of the covenant. But this double wide has been present only 18 months. If all the other homes in the HOA comply with the covenant you quoted, an HOA attorney might very well say, "Enforce the covenant. Make the Owner remove the double wide. This is unacceptable. Start with a demand letter. If this dispute looks like it might land in court, we can talk more to see if the cost is worth it to the HOA."

-- If you attempt an amendment, one thing that bothers me is that the current amendment (if properly recorded with the county) first limits each lot to "one single family residence." But then the amendment permits "guest homes." To me, this is confusing and/or what the courts might rule is "ambiguous." To me, it sounds like in fact two single family residences are allowed.

-- AugustinD's layperson's rule of thumb from case law: The bigger the HOA's lots; the more rural the setting; and the more ambiguous a covenant is, the more likely the offending Owner will prevail in court with regard to a violation of a covenant's use restriction. A court's formal finding of "ambiguity" translates to interpreting the covenant (a contractual term) against the entity that wrote the covenant and in favor of the offending Owner.

-- I agree with others' concerns about defining "constructed on the premises" or, if the membership wants to allow, say, modular homes, defining this more. And so on. I know what folks above mean about the confusion. Advances in the technology of home construction maybe have resulted in some definitions becoming moving targets in some states with little regulation. A friend of mine bought a home that was disclosed to be 'site built.' The home was partly constructed by high school kids under supervision of an appropriately certified contractor and teacher. Sections of the home were then trucked to the site. My friend could not prove to the court that case law required the details of the manner of construction to be disclosed. My friend did not use a home inspector (among other options), who likely would have been able to identify not the greatest construction. A lawsuit resulted. The outcome: all sides lost lots of money and time, no awards from the judge, and the attorneys made money.

>>-- Are all signs that the original land owner properly recorded the amendment with the county?

Yes, the original document states they are filed with the county. Dated August 2002.
The Amendment, I am assuming; it's dated 2003, but I do not have a signed copy. I have asked our attorney but she has yet to get back to me.

Our community is what I would call rural. (it's our summer place) lots range from mostly 5 acre, a few lots are in the 20acre range, the one with the Mobile home is 10acres. They happened to put it up near the main road, not tucked back in the woods, so it is quite visible to everyone who comes in.

Most homes were built in 2004-05 as summer homes. Our property had a home that was hit by lightening and burned, we just build last summer.

30 total lots, 6 homes.

>>But then the amendment permits "guest homes."
The original Covenant included the Guest home too. (Did I neglect to type that?)

And, where we are located, we do drive through an area that are single wides and quite run down, it is my assumption that the original land owner wanted to keep the property from becoming a typical run down rural area. As originally stated, Single Wides not allowed.

And, for what it's all worth, we are not looking at legal action, and are not asking the owner to remove their home. This all could have been a misinterpretation, but we need to nip it earlier than later so this cannot happen again.

Last fall, another smaller lot sold and the new owners were told that Double Wides were "OK" to put on the property and what their plans were was to build a home out of "containers". They were told that was against our Covenants.

For the differences between a modular home and a trailer see:

What's the Difference? - Mobile vs. Manufactured vs. Modular Homes

Let me ask your opinion on this....

>>All structures built or installed on the lot must be constructed on the premises.
No mobile homes or homes maybe be moved from other locations and installed on any lot.

where the term "installed" is used, could this be interpreted as installing a manufactured, modular or Mobile home? as long as it is not a single wide, or used mobile home?
I see "constructed on the premises" as building a house from the ground up.

When we met with our attorney last November, she stated to have a board meeting to discuss this and she'd write up a letter of variance for the home.

Input....

A strict interpretation, in addition to being ambiguous, would also not likely pass a reasonableness test in court. I suggest your board develop some guidelines that allow reasonable construction techniques.

thank you, all of this has been very helpful. I've done a search for HOA Attorney, and not having much luck - maybe if I lived in CA or NY, but I don't.
I have emails in to our attorney, but having difficulties getting her to respond... I've been told she's super busy.

I have a few weeks to do some research before our meeting, I will dig into all the comments here, and I will absolutely give updates if and when i hear from our attorney and what transpires this summer.

Terese

We had our special board meeting last week. Our attorney created a document that the Lot owner and 2 board members had to sign and it was also filed with the county. The variance will stay with that lot, and no other mobile home may ever be brought in. If this one is pulled out, a home needs to be built.

we did have 1 lot owner come to the meeting and she said she was voting NO, but owners were not allowed to vote on this subject.

We will be amending our Covenants to add that all residences need to be approved before construction can begin so this never happens again.

Thanks to all who gave me input, it was very helpful.