VARIANCES

If you are reading this section of the CC&Rs correctly, and this is a big "if," then it means the Board can amend the Declaration at will. But this conflicts with the fact that this Declaration has a section that describes how only a vote of the owners can amend the Declaration, correct?

Where does it say the post-declarant board has the powers listed under the "Special Exceptions and Variances" section you posted? Please quote verbatim this section.

You are aware that sections like the one you quoted are common and designed to give the Declarant a certain amount of leeway, within reason, to sell home lots or condo units, right?

The CC&R's do not show it grants the powers for the special exemptions and variances specifically. Does this mean that unless the developer specifically designates the Association for other areas that reference a Developer and not the Association that the Association doesn't get to replace Developer with Association?

And no, I'm not aware this is particularly designed to give leeway to sell lots. When I moved here in 2018 they'd finished building and turned over the power to the Association so I just wondered (and knew it would be free to ask here rather than hear it from my $250/hr. attorney) if this particular right to grant variances would then transfer power to the Association in the same way.

I also told my President that I thought this seemed "too easy" and that I would check it out.

We used this "power" when a homeowner asked for a variance on the 10ft. easement requirement on a shed and we allowed it to be 5ft. which was the county requirement. I hope we didn't do that wrong.

As I assumed, it might not carry the weight for us to allow a fence as a measure of concealment for a boat.

I'm just trying to keep the freedom people have without breaking the rules.

Yes, we are limited on amendments to 2/3 votes. Which is why we were thinking, skip the amendments we can't get and just provide a variance to all homeowners on the requirement that a boar/RV be enclosed so long as it is concealed behind a 6ft privacy fence.

We have 9 homeowners with a boat or an RV behind a fence. No one is complaining about it. BUT we got a new President this year and she is intent on enforcing every rule, whether or not it's been abandoned since the developer turned it over.

Maybe we can establish a rule that c behind a 6ft privacy fence??

As a Treasurer and a person who cares for the community I am trying not to fight myself (a board member) to keep my boat where it is. Behind a fence in well maintained condition.

So I'm just trying to figure out the best way to let the President enforce every rule, without having to take down a shed and rebuild an "enclosure" for my boat.

ULTIMATELY, Yes this is purely personal and I do know that. it is NOT AT ALL why I joined the board this year, that was purely coincidence. I'm just angry that it's been fine all these years for all these people and now because the current President wants to be the enforcement police, it's a problem. So I'm trying to make a win for everyone. I don't want to be the board going to the nine homeowners and saying "get an enclosure or get it off the property".

That might not be possible but I will definitely try!

I feel like Adam...just trying to find a place for my bees...I mean, my boat. LOL

15. BOATS AND VEHICLES. No boats, boat trailers, mobile homes, house trailers, travel trailers, camper vehicles, motor home, trucks (such term shall not include pickup trucks, sport utility vehicles, passenger vans, and minivans), and commercial vehicles shall be permitted to remain in the subdivision overnight; except that boats or boat trailers, travel trailers, motor homes, camper vehicles, and commercial vehicles are permitted when (a) parked in an enclosed garage; or (b) parked on the driveway to a Lot on a temporary basis, not exceeding seven (7) days; or (c) parked on a Lot in a location 50 feet behind the front property line, and when such boat or vehicle is not visible from the street and does not detract from the neighborhood, Except for inoperative vehicles which are parked in an enclosed garage, all vehicles shall have a current license tag registration and shall be in an operating condition. No vehicles shall be parked on any street or front lawn of the subdivision overnight or on a regular or continuing basis. Notwithstanding the foregoing, a member of a family residing in the home may park a passenger car or pickup truck in the driveway of the residence as long as such vehicle is operable and has a current tag registration.

Only Florida case law describes the requirements for abandonment of a covenant in Florida. This site discusses both abandonment and also the defense of "acquiescence": https://www.theclosingagent.com/termination-homeowners-covenants-restrictions/

One can google for the case law cited and see how Florida courts are thinking about abandonment and acquiescence. Given the case law; what you describe is going on with boats; and if I were on your board, I would vote not to enforce the covenant on boat concealment (that is clearly being violated right and left).

Owners wishing to sue the HOA, board for not enforcing the covenant, and boat owners for violating the covenant can have at it. One has to guess as to which choice (enforce or not enforce) at this point is the least risky.

Of course, that $250/hour attorney is standing by, ready and willing to take your board's call. It's always nice to be able to say, "The HOA attorney advised us to do this."

Thanks for that I will present to them for considering as well as might invest a 1/2hr on a conversation with the attorney.

Those exceptions and variances were for the developer, no one else.

Yep, that is exactly what it means. This was the developer's playground and he gets to play by any rules he wants. Once he is done, he is laughing his ass all the way to the bank.

This is what the covenant says. But the courts, including Florida's courts, have put a limit on developers granting exceptions under covenants like the one CarissaM quoted in her first post here (titled "Special Exceptions and Variances"): The courts say the exception granted by the developer must be reasonable. For example, from Flamingo Ranch v. Sunshine Ranches H, 1974 Florida Court of Appeals, https://casetext.com/case/flamingo-ranch-v-sunshine-ranches-h:

[The Court holds], therefore, that the clause in the Declaration of Restrictions, which reserves to the owner "the right to alter, amend, repeal or modify these restrictions at any time in its sole discretion" is a valid clause so long as it is exercised in a reasonable manner as not to destroy the general scheme or plan of development.

There is case law after 1974 that refined this decision but did not change the main theme as given above.

In the case of CarissaM's HOA, would the developer's allowing one home to have a boat visible (in violation of the covenant on boats) while not allowing other homes to have a boat visible be "reasonable"?

I do not know. I might look at subsequent case law that cites the Flamingo decision. Given all the facts here, I know I would not want my HOA to spend a lot of money to find out.

For what it's worth, if the developer did grant this exception, then I think the only way it is reasonable is if it applies to all owners.

Yes, it's a contract, constrained like anything by case law.

More importantly, I think what I posted (as quoted herein) is confusing. I think I was trying to say that I think a Declarant might be on thin ice (if push came to shove and a dispute landed in court) granting a variance to one lot that could easily be applied to all lots. But I could be quite wrong on the latter.

It seems to me that covenants for Declarant-granted variances would be exercised in unusual situations, specific to a lot's configuration, such that the variance, even if granted, practically speaking could not even be implemented for other lots.Yes...The Declarant's rights to grant special exceptions and variances terminates. But I do not think the previously granted special exceptions and variances terminate unless they somehow violate the law of contracts.I agree the rights do not transfer. But again, the special exceptions and variances remain unless they somehow violate the law of contracts. C can challenge what the Declarant did. Whether C would prevail in court depends.

My comments in my earlier posts in this thread are based on actual case law where the Declarant made some major change to certain lots in the HOA and those who bought earlier said, 'Whoa, we did not agree to this.' For example, in one case a Declarant's covenants said 'there shall be a golf course.' Then IIRC the Declarant turned around and said, "The Declarant is exercising its right to amend, under Declaration Section ___. Instead of a golf course, the Declarant will be building homes." (It was something like that.) All hell broke loose. The plaintiff owners said to the court (right through an appeal), "This destroys the promised general scheme and plan of the HOA. Your honor, the Declarant is not being reasonable in its exercise of discretion here. Please rule in our favor." Ultimately the appeals court did (or the appeals court said the trial court failed to consider certain law about reasonableness, and sent the dispute back down to the trial court, for a new trial on the facts pertaining to reasonableness yada).My comment that "For what it's worth, if the developer did grant this exception, then I think the only way it is reasonable is if it applies to all owners," is poor communication by me. Let me put it this way:

The Declarant way back when says to A, "Okay, if you, A, buy the lot and house, you may have a boat that is visible from the street. Here's a signed, notarized statement that the Declarant grants you, A, this special exception and variance, pursuant to CC&R sections _ and __. Make copies. Put the original in your safe deposit box. Deal?" The owner A agrees to the deal and buys the home and lot."

Owner C owns a house in the HOA. Owner C walks into the Declarant's office and a conversation ensues:

C: "Owner A is violating the covenants. What gives?"

Declarant: "Per the covenants, the Declarant granted a variance. See CC&R section __ . We needed to sell the house and lot. We could not put in the pool without this sale."

C: "I want to be able to park my boat the way Owner A does."

Declarant: "No, the Declarant won't agree to this. People will get out of control if the Declarant grants variances right and left."

C: "I think that big boat sitting in A's backyard detracts from the scheme of the neighborhood. If you allowed all owners to have boats that are visible from the street, then the scheme would be consistent."

Declarant: "Yes, I have heard of that case law. But I disagree. Sue me."

C: "I will consider it."

Of course, C could sue in an attempt either (1) to allow all owners to have boats that are visible; or (2) to force the Declarant to grant this particular exception/variance to all lots/owners. Who would win is not clear to me.

I do think the case law tends to have situations where the Declarant started on some large and obvious change to such-and-such, where such-and-such is in the covenants, and the owners said, "Hey, when we bought our homes, we relied on such-and-such occurring, just as the covenants say. We owners think you are radically changing something on which we relied on. Stop now." And the lawsuits begin.This is the courts talking, not Aug. Nationwide a general rule for HOAs is: Where the Declaration grants either a Declarant or a HOA Board discretion, that discretion must be exercised reasonably.Which legal rights are you saying are diminished?

I do think my original statement was based in an unnamed hypothetical. (How annoying.) It's probably more helpful to home in on the realities of the OP's situation. Namely:

-- The Declarant is long gone.

-- Owner A claims the Declarant gave him the right to park his boat so that it is visible. Let's assume this is well-documented. Let's assume the HOA manager even calls the (now long gone) Declarant and finds the Declarant's paperwork granting the variance.

-- New Owner C comes along and says to the Board, "I want to park my boat just like A."

-- The Board says, "That was a variance granted by the Declarant under CC&R section ___. Here's the paperwork. The Declarant is long gone. The post-Declarant HOA does not have the authority to grant variances."

-- New Owner C says, "Hmm. I do not think this is reasonable."

-- The Board says, "Sue the Declarant."

-- New Owner C says, "Maybe I'll sue both the Declarant and you (the HOA)."

-- The Board says, "Have at it."

I would be speculating on what a court would rule. I have not seen case law on relatively small stuff that a Declarant does. Is letting a boat be visible from the street small stuff? I do not know.

Sure. But CarissaM queried:

I presume she asked this because, on its face, this does not seem reasonable. Granted it would seem to be a hypothetical that is not directly related to solving the current problem (with the Declarant long gone).

For this hypothetical (where the Declarant is still in control of the HOA), I do not know what a court would say.

I think we are talking past each other. All I know is that the courts say that even unambiguous language in a contract may not be enforceable by the courts under certain conditions. In the case of Declarants and covenants, and regardless of any covenant that allows the Declarant to grant a variance, the courts say that the Declarant does not have complete carte blanche to do so. In Florida, the language of the main case law is that the variance has to be reasonable and in particular, not destroy the general scheme or plan of development. This case law has been used to establish similar precedent in other states.

I am quoting well-established case law, using layperson's language. It's fine if you don't buy it, of course.I would not conclude these facts without more study.

What if, of all the owners, only one had a boat? Or of all the owmers, only one made a request?

In the first scenario, the insurance would pay up and they buy another boat, maybe bigger. In the second scenario, the other spouse now has it all to themselves.

WIN WIN!

Legally it's pretty much the correct answer when the Florida Supreme Court says it is. Until then, we'll never have much certainty.

I can appreciate that you thinkcase law does not exist on this point. You even assert this as fact. I strive for honesty. I do not know if such case law exists or not.

What world view? And no, this is not what I maintain.

I have repeatedly pointed out that variances the Declarant grants, if challenged in court, have to pass the courts' test of reasonableness, with an emphasis on whether the variance defeats the general scheme or plan of development. I am not in Florida. My state happens to have the same test. Other states do as well.No, this is not what I say. What I am reporting from case law is that, when the Declaration grants a Declarant or board discretion to do xyz, the courts say this discretion must be exercised reasonably. If you had the ability to review even the applicable Restatement (summaries of the case law nationwide), then you might start to understand this.

You are also mixing CarissaM's hypothetical with the facts of her case. Several homes have a boat visible from the street. The covenant has not been enforced for some years. Only one of the owners contends that he has a variance on this point, but thus far this owner has not produced proof. Far more factors are in play than you seem to grasp.

For the hypothetical that CarissaM describes (as quoted in this post), at this point I think a plaintiff owner who challenged a declarant (that is still in control of the HOA) who removed a restriction on one lot but not all the lots might very well be successful.

The Flamingo Ranch v. Sunshine Ranches H, 1974 Florida Court of Appeals case I cited earlier concerns a Declaration that speaks of the developer's land being used as a "residential area." The developer sought to amend the restrictions so as to permit a portion of the property to be used for both business and residential purposes. In other words, the developer sought to grant variances to some lots but not others. The appeals court declared that the trial court failed to apply a test of reasonableness to the developer's amendment. The appeals court sent the case back to the trial court, ordering the trial court to determine if the amendment destroyed "the general scheme or plan of development." See https://casetext.com/case/flamingo-ranch-v-sunshine-ranches-h:

Other court cases nationwide reference Flamingo with respect to whether either a Declarant or vote of owners, both having certain authority under the Declaration to amend the covenants, could remove restrictions from some lots within a HOA but not others. See Appel v. Presley, 1991, NM Supreme Court, https://casetext.com/case/appel-v-presley-companies. On this point Appel ve. Presley references another NM Supreme Court decision, Montoya v. Barreras, 1970. In Montoya, the NM Supreme Court made clear that lifting restrictions on one lot but not all lots is permissible only under certain conditions:

"[An amendment removing restrictions on one lot] would permit the majority of owners, whose lots might not be adversely affected because of their insulated location in the subdivision, to authorize offensive consequences for the minority by removing or imposing restrictions only on certain lots within the area. Because the grantor encumbered all of the property with restrictions, we cannot infer from the declaration the intention that any subsequent change or changes in the restrictions could be made applicable to only one lot or a portion of the lots in the residential subdivision.

Our holding that the declaration does not permit the majority of owners to exempt one lot only from the residential restrictions, contrary to the vested rights of the minority of owners, does not necessarily mean that the plaintiff was or is without a remedy. This court has long recognized that individual lots in a subdivision may be relieved of restrictive covenants if there has been such a change in the conditions which existed when the covenants were imposed as to defeat the intended objects and purposes of the covenants and their enforcement is no longer necessary to afford the protection originally contemplated. Williams v. Butler, 76 N.M. 782, 418 P.2d 856 (1966); Mershon v. Neff, 67 N.M. 311, 355 P.2d 128 (1960); Chuba v. Glasgow, 61 N.M. 302, 299 P.2d 774 (1956). See also the majority opinion and the dissent in Mason v. Farmer, 80 N.M. 354, 456 P.2d 187 (1969). In the present case, however, no allegation of change of conditions was raised by the pleadings nor was any finding concerning change of conditions requested or made.

To the extent that it relieves and excludes the plaintiff's lot from the operation and effect of the restrictive covenants, the decree is reversed with directions to enter a new decree consistent with this opinion."

Does Florida have similar case law? Maybe. If this case law existed, would it be relevant to the facts in this thread? Quite possibly. But even if Florida has a case nearly identical to the New Mexico decision above, one is still stuck with speculating on what a court would say.

If I had to bet, then I think CarissaM's and my own gut feelings are correct. I think a court would say that a Declarant lifting a restriction on one lot but not all lots is generally not something a court will permit.

What does this mean, practically speaking? If this one owner in CarissaM's HOA can cough up a variance, in writing, granted by the Declarant, then the variance wording should be examined closely to see whether the Declarant meant it to apply to just one lot or to all lots. If this variance, in writing, exists, either the board should go see an HOA attorney, or the board can do whatever based on all the facts here and the board's own best guess. The facts pertaining to abandonment or acquiescence may be more important than any of the other facts here.I expect NpS will contend that the case law above does not come close yada.

I am posting for the archives, for those who have a feel for how case law works, understanding that the case law is often only guidance and may not be dispositive (or 'sufficiently dispositive') for a situation where the facts are similar but not identical to the case law.

CathyA3, thank you for the real life examples of when a developer appears to be on strong legal ground for granting a variance. I think the examples where some lots had a restriction lifted while others did not are particularly instructive. It appears to take pretty special physical or financial circumstances for a Declarant to believe a variance that lifts (or negates, say) a restriction on some lots but not others is justified. I think this is consistent with the bit of case law I am seeing.

To return to CarissaM's query:From CathyA3's examples, I do not think developers are in the habit of granting a variance to one lot simply because a potential buyer wants a certain luxury or advantage, with said luxury or advantage having nothing to do with lot impairments or even the developer needing to sell the lot. Instead, I can see the developer possibly agreeing to amend the covenants (applying of course to all owners), after, say, maybe taking the temperature of the then-owners to see if any of them would make legal trouble over such an amendment.

heh . I agree nothing is certain here. But I like the chances of those who have boats visible from the streets.

According to the most recent post by CarissaM, the signs now are that the Declarant granted the exception to all. Which interestingly, is consistent with CarissaM's and my own gut feeling that such an exception granted to one is not reasonable.

I do not think the Declarant-issued variances that CathyA3 describes should be spoken of as though they were at all like either those in the case law I cited or like what CarissaM is describing at her HOA. Nor do I believe that the variances CathyA3 described are causing problems.

It seems like you think any time I post case law I mean it as gospel. I think I qualify carefully. It's as though you think the case law, which typically yields "rules" that are universal nationwide, has no value.

I understand all volunteer directors could not possibly parse case law. Many simply lack the skills to reason well and keep a lot of things in mind at the same time. According to you, making decisions largely without the guidance of statutes, covenants, an attorney or case law, as you indicate is common at your HOA, works for people at your HOA. No one's suing, no one's threatening to sue. Great. But at other HOAs/COAs threats of a lawsuit happen. Many here do want guidance from statutes and case law, especially the general rules that derive from case law and are not in statutes. Sites like justia.com and casetext.com are free to the public. There's no reason participants here should not use these sites to try to learn a little about what the courts are saying, and to help prepare for meetings with attorneys. Also, yes, reading case law can help those with enough motivation and brains learn to think critically and logically about the language of covenants and the "why's" of certain covenants, especially when people are threatening lawsuits.

I figure: If and when CarissaM as an owner receives a violation notice, she gets to defend herself with anything she has.

FWIW, I agree with all. Especially since I can see folks lawyering up over this. In the latter case, she is an adverse party (blah blah TMI TLDR)...

Though I suspect CarissaM is aware of this and at most, maybe needed a suggestion on the point as to how she should proceed to get justice. (Who doesn't need hoatalk members' advice? ;) ) As CathyA3 indicates, CarissaM is stuck recusing herself from board discussions with her director's hat on. Given the possibility of litigation, I suppose CarissaM should not even attend those parts of the board meetings where this is discussed in executive session.

Unfortunately, 2/3 of the board are in violation with zero other homeowner in the community willing to step up to be on the board. I can't change that.

At this point my best bet is to wait until a homeowner brings a grievance because the President has an RV. The Vice is not in violation. I'm the Treasurer with a boat. 2/3 out of compliance.