can prior rights be overruled?

PatriciaC14 (Washington)
Posts: 17

Posted:

The original developer's CC&R's provide for a mixed use community. That was in 1969. There were single family homes, trailers, commercial property, and multi-family in the CC&R's. Over time the community has developed as single family homes. Later (unrecorded) CC&R's stipulate only single family homes to be allowed. There are no commercial or multi-family currently in existence here. But those lots designated for trailers still have them. They are pretty old. Others of those lots have manufactured homes. The suggestion is out there to somehow change things to stick-built in the future on those lots. Is there an issue with prior rights there?

TimB4 (Tennessee)
Posts: 21,059

Posted:

When did the CC&Rs change (how long ago)?

PatriciaC14 (Washington)
Posts: 17

Posted:

Thank you. The 2001 recorded Covenants refer to only single family on the "residential lots". It keeps referring to residential lots. It still lists "mobile homes" as permitted on specific lots.
Then there are two unrecorded amended CC&R's. The 2015 unrecorded CC&R's refer to manufactured homes permitted only on those same lots. The 2020 unrecorded CC&R's repeat the 2015 language about manufactured homes, and are specific about the commercial properties : "Commercial buildings are not allowed".
I am wondering about the prior rights of those lots, and whether or not the HOA can change those designations, especially where trailers have been established.

PatriciaC14 (Washington)
Posts: 17

Posted:

Thank you. The 2001 recorded Covenants refer to only single family on the "residential lots". It keeps referring to residential lots. It still lists "mobile homes" as permitted on specific lots.
Then there are two unrecorded amended CC&R's. The 2015 unrecorded CC&R's refer to manufactured homes permitted only on those same lots. The 2020 unrecorded CC&R's repeat the 2015 language about manufactured homes, and are specific about the commercial properties : "Commercial buildings are not allowed".
I am wondering about the prior rights of those lots, and whether or not the HOA can change those designations, especially where trailers have been established.

CathyA3 (Ohio)
Posts: 6,299

Posted:

You probably need to talk to a lawyer since state laws can vary. But...

* Usually new CC&Rs must be recorded to take effect. This would mean that the 2015 CC&Rs are the ones you need to use.

* Changes to CC&Rs have to be voted on and approved by the membership, and often requires a super-majority (67% or 75%) to approve the change. State law and/or your governing documents may require a different percentage.

* When CC&Rs are amended in such a way that previously acceptable things suddenly become violations, a common practice is to grandfather the things that are now problems and require homeowners to correct them at a reasonable time (such as when the item is due to be replaced). If you're talking about construction styles, it could take many years for some things to become "replaceable".

One observation: even if it would be legal to do what you're talking about, IMHO you're inviting a lawsuit and that could get very expensive. People can get offended if they think that the neighbors don't want to look at their cheap eyesore of a house. At the very least it could create turmoil since you're basically identifying an undesriable low rent district within the community. (I've seen similar mentalities in communities with nice single family homes in one area and attached housing in another - the folks in the attached homes are often treated as second class citizens, and it does not promote community harmony.)

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By CathyA3 on 12/12/2021 1:12 PM
You probably need to talk to a lawyer since state laws can vary. But...

* Usually new CC&Rs must be recorded to take effect. This would mean that the 2015 CC&Rs are the ones you need to use.

* Changes to CC&Rs have to be voted on and approved by the membership, and often requires a super-majority (67% or 75%) to approve the change. State law and/or your governing documents may require a different percentage.

* When CC&Rs are amended in such a way that previously acceptable things suddenly become violations, a common practice is to grandfather the things that are now problems and require homeowners to correct them at a reasonable time (such as when the item is due to be replaced). If you're talking about construction styles, it could take many years for some things to become "replaceable".

One observation: even if it would be legal to do what you're talking about, IMHO you're inviting a lawsuit and that could get very expensive. People can get offended if they think that the neighbors don't want to look at their cheap eyesore of a house. At the very least it could create turmoil since you're basically identifying an undesriable low rent district within the community. (I've seen similar mentalities in communities with nice single family homes in one area and attached housing in another - the folks in the attached homes are often treated as second class citizens, and it does not promote community harmony.)

Well said.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By PatriciaC14 on 12/12/2021 11:17 AM
The original developer's CC&R's provide for a mixed use community. That was in 1969. There were single family homes, trailers, commercial property, and multi-family in the CC&R's. Over time the community has developed as single family homes. Later (unrecorded) CC&R's stipulate only single family homes to be allowed. There are no commercial or multi-family currently in existence here. But those lots designated for trailers still have them. They are pretty old. Others of those lots have manufactured homes. The suggestion is out there to somehow change things to stick-built in the future on those lots. Is there an issue with prior rights there?

Even if the percentage specified in the CCRs voted to approve the prior amendments or any future amendment, and even if these amendments are properly recorded, courts nationwide have said that a majority cannot tyrannize a minority. Courts may very well throw out an amendment, even with a grandfathering clause, if the court believes the amendment is not fair and reasonable.

All of what you describe sounds unfair and unreasonable. Why? Because people bought into this HOA on the assumption they could build xyz home whenever they desired. Now some of the owners want to restrict this right. This is a huge restriction. I am not sure a court would buy it.

I think your HOA's mish-mash of housing and mish-mash of questionable (due to not being recorded) amendments translates to a good probability of a lot of angry owners; disputes; and possibly expensive litigation for both sides. Hackneyed but true, and over several years, with the climate being angry and contentious, I expect the only winners will be the lawyers.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By CathyA3 on 12/12/2021 1:12 PM
You probably need to talk to a lawyer since state laws can vary. But...

* Usually new CC&Rs must be recorded to take effect. This would mean that the 2015 CC&Rs are the ones you need to use.

Correction - 2001 CCRs need to be followed, as the 2015 CCRs were not recorded.

Patricia, you did say that the 2001 CC&Rs specify that certain lots may have mobile homes or manufactured homes. Based on that, I would expect that the lots that already have those homes are grandfathered (typically until they need to be replaced).

As Cathy said, to be positive, you should ask an attorney.
At the very least, ask the board (in writing) what specific lots are authorized mobile/manufactured homes.

PatriciaC14 (Washington)
Posts: 17

Posted:

Thank you for this great advice. A little touch of reality is greatly appreciated.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By AugustinD on 12/12/2021 2:36 PM

Posted By PatriciaC14 on 12/12/2021 11:17 AM
The original developer's CC&R's provide for a mixed use community. That was in 1969. There were single family homes, trailers, commercial property, and multi-family in the CC&R's. Over time the community has developed as single family homes. Later (unrecorded) CC&R's stipulate only single family homes to be allowed. There are no commercial or multi-family currently in existence here. But those lots designated for trailers still have them. They are pretty old. Others of those lots have manufactured homes. The suggestion is out there to somehow change things to stick-built in the future on those lots. Is there an issue with prior rights there?

Even if the percentage specified in the CCRs voted to approve the prior amendments or any future amendment, and even if these amendments are properly recorded, courts nationwide have said that a majority cannot tyrannize a minority. Courts may very well throw out an amendment, even with a grandfathering clause, if the court believes the amendment is not fair and reasonable.

All of what you describe sounds unfair and unreasonable. Why? Because people bought into this HOA on the assumption they could build xyz home whenever they desired. Now some of the owners want to restrict this right. This is a huge restriction. I am not sure a court would buy it.

I think your HOA's mish-mash of housing and mish-mash of questionable (due to not being recorded) amendments translates to a good probability of a lot of angry owners; disputes; and possibly expensive litigation for both sides. Hackneyed but true, and over several years, with the climate being angry and contentious, I expect the only winners will be the lawyers.

Good evaluation of the situation.