Property not part of Protective Covenants

Started by GlennL3 • 18 replies • 510 views

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GlennL3 (North Carolina)
Posts: 6

Posted:

Hello,

I recently purchased an undeveloped lot in NC. The previous owners never paid any HOA fees for the 10 years they owned it, as it was found that the lot was never included in the HOA and it's Protective Covenants. I recently received an email from the HOA requesting I draft a letter stating I "willingly request" that the property be added to the Protective Covenants.

If the property is not included in the 'existing HOA Protective Covenants, can I be forced to join if I do not wish to?
I've reached out to a Law Firm in NC, and provided them with the details right before Thanksgiving, and waiting to set up a meeting.

Thanks,
Glenn

WendyM5 (North Carolina)
Posts: 1,522

Posted:

do not, willingly join the association

the only reason they would ask you to join is becuase they dont' like something about your property. As soon as you join you will be forced to do what ever malarky they want. If someone trips and dies on HOA property and they dont' have insurance you will foot the bill.

vis ta vie

WendyM5 (North Carolina)
Posts: 1,522

Posted:

Carolina. Many of the basic theories underlying modern-day North Carolina courts’ interpretation
of restrictive covenants date back to cases such as Davis v. Robinson, 189 N.C. 589, 127 S.E. 697
(1925). In Davis, property owners in the Piedmont Park section of the City of Charlotte brought
suit against other owners in the subdivision who desired to use their property as a “filling station.”
The plaintiffs’ deeds all contained restrictions that limited use of the properties to residential
purposes. The defendants’ deeds contained no such restrictions.
19
The plaintiffs contended that the
whole development of Piedmont Park was the result of a “general scheme or plan” to preserve and
maintain “Piedmont Park” as a strictly residential community or neighborhood.
20
The case made its
way to the Supreme Court and the Supreme Court held that the restrictions in the plaintiffs’ deeds
were not enforceable against the defendants because the defendant’s deeds did not contain the
restrictions.
21
In so holding, the Supreme Court laid down some basic rules of law for enforcement
of restrictive covenants, which can be seen throughout more recent North Carolina appellate cases
dealing with restrictive covenants. These rules of law include the concept of restrictive covenants
generally being construed in favor of the free use of property and the requirement that a negative
easement restricting use of property must be in writing.

vis ta vie

WendyM5 (North Carolina)
Posts: 1,522

Posted:

there is no need to hire a lawyer, they will just take your money and tell you the same thing.

vis ta vie

LoriM15 (Florida)
Posts: 1,009

Posted:

I don't think any of us here has enough experience with your particular situation to comment on this. Please ignore "Wendy".

You really just need to wait and speak to your attorney about this. I would definitely not do anything without the advice of a good real estate lawyer in your case.

DouglasK1 (Florida)
Posts: 2,046

Posted:

Similar questions have been asked here before, and the general consensus is that if you are truly not in the association, they can't force you to become a member. Since they are asking you to voluntarily join, that suggests that they recognize that you are not currently a member. Make sure to keep that paperwork since it might come in handy at some point.

Having an attorney review your specific case is not a bad idea since there might be more to the picture that is not obvious.

Escaped former treasurer and director of a self managed association.

WendyM5 (North Carolina)
Posts: 1,522

Posted:

Quote:

Posted By DouglasK1 on 11/28/2022 2:45 PM
Similar questions have been asked here before, and the general consensus is that if you are truly not in the association, they can't force you to become a member. Since they are asking you to voluntarily join, that suggests that they recognize that you are not currently a member. Make sure to keep that paperwork since it might come in handy at some point.

Having an attorney review your specific case is not a bad idea since there might be more to the picture that is not obvious.

100% true. I would just totally ignore the letter, but if you are curious, What you need to do is play dumb. Ask them about benefits in joining the association. like can you use the pool or basektball court. etc. Act really interested and then start trying to figgure out why they want you to join? I see only negatives. Again no need to piss away money on a lawyer until they start lawyering up.

vis ta vie

WendyM5 (North Carolina)
Posts: 1,522

Posted:

there is a decent book on NC HOA law called Common Interest CommunItIes In north CarolIna: Second Edition
I've spoken to the author, he's the only lawyer that I've talked to that seems competent in HOA law.

vis ta vie

MelissaP1 (Alabama)
Posts: 13,836

Posted:

As I understand it, an UNDEVELOPED lot doesn't pay dues. It is once it is developed that dues are collected. Hence why if there was no house on this lot, there was never any HOA dues paid. Now onto the part about the HOA. You need to go to the courthouse to get a copy of the CC&R's of the HOA. Your property may have restrictions on it as they go with the property.

It is a bit confusing. You may still live under restrictions on that lot.

Former HOA President

LayaS (Nebraska)
Posts: 249

Posted:

Quote:

Posted By MelissaP1 on 11/28/2022 3:34 PM
As I understand it, an UNDEVELOPED lot doesn't pay dues. It is once it is developed that dues are collected. Hence why if there was no house on this lot, there was never any HOA dues paid. Now onto the part about the HOA. You need to go to the courthouse to get a copy of the CC&R's of the HOA. Your property may have restrictions on it as they go with the property.

It is a bit confusing. You may still live under restrictions on that lot.

In my previous HOA, owners of undeveloped lots paid HOA dues. (Iowa) The owners had voting rights and rights to use the amenities.

I would definitely wait on the lawyer's advice before jumping to conclusions. You shouldn't have to join the HOA if you are not in its legal
boundaries. I would be cautious about joining if you don't have to. Investigate it thoroughly. I was given that advice here when I purchased my current property. Good advice!

TimB4 (Tennessee)
Posts: 21,059

Posted:

Glenn,

Can you be forced? No.
You can be pressured and, perhaps, harassed to join but the choice is yours.

If I discovered that my lot was inadvertently excluded, I would never join and make that as a selling point later.

GlennL3 (North Carolina)
Posts: 6

Posted:

Thanks everyone!!!!!

Here's a few more details...

The lot was originally defined as a "Well Lot" in Phase 2 back in 1995. In 1997 Phase 3 was implemented, and after it's completion, the HOA and Protective Covenants (PC) were put in place. Phase three ended with Lot 73. All of the lot numbers up to 73 are specified in the current PC. In 2003, the "Well Lot" was redesignated as a "buildable lot", and was assigned number 74. The PC was never updated to include lot 74.

Lot 74 when up for sale and was purchased in 2013. I purchased the lot in May of this year. I reached out to the HOA and it's Management Company when I initially was looking at purchasing the lot. I was told I needed to obtain "paperwork" from the Management Company for the closing if I purchased the lot. When I reached out to them, they told me they had no record of the lot's address as being part of the HOA. The owners who purchased the lot in 2003 NEVER paid any HOA fees, (there are "reduced fees" for undeveloped lots) since they purchased it. That's what started this whole thing, and the HOA said it was an "oversight/mistake" on their part that the lot was never included in the HOA and PC.

The HOA board is actually very nice, and the PC is not very strict. The only issue I really had was they require all driveways to be "paved" after the home build is complete. I prefer to have a natural stone driveway.

Personally, I would prefer to not be part of the HOA, as most probably would. There's nothing I would "do" that would be in violation of the current PC, other than the driveway, and I certainly wouldn't be a PITA neighbor.

I'm waiting to hear back from the law firm I reached out to to see what they have to say.

Thanks for all your input!!!!!

GlennL3 (North Carolina)
Posts: 6

Posted:

Hi Wendy,

It looks like the book can only be purchased through the NC Bar Association.

https://jordanprice.com/second-edition-of-common-interest-communities-in-nc-released/

If you could share the author's name or Law Firm, I would like to reach out to him/them.

Thanks.

WendyM5 (North Carolina)
Posts: 1,522

Posted:

Quote:

Posted By GlennL3 on 11/29/2022 6:36 AM
Hi Wendy,

It looks like the book can only be purchased through the NC Bar Association.

https://jordanprice.com/second-edition-of-common-interest-communities-in-nc-released/

If you could share the author's name or Law Firm, I would like to reach out to him/them.

Thanks.

yeah that's where I bought mine from, please post an email and I'll send lawyers name, not supposed to promote companies is a forum rule.

vis ta vie

GlennL3 (North Carolina)
Posts: 6

Posted:

Hi Wendy...you can email me at [email protected]

THANKS!!!

GlennL3 (North Carolina)
Posts: 6

Posted:

Hi Wendy...you can email me at [email protected]

THANKS!!!

GlennL3 (North Carolina)
Posts: 6

Posted:

I just wanted to follow-up...after consulting with a NC attorney that specialized in Real Estate and HOA law, with the information I provided, and his own research, it was determined that the property was NEVER included in any of the 3 phases of the restrictive covenants, or the final "Restated Restrictive Covenants".

He basically said...if it was me, I wouldn't sign the declaration to join the HOA.

Thanks to all for their input!!!

TimB4 (Tennessee)
Posts: 21,059

Posted:

Thanks for the update.

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