Housebuilding timeframe

Started by TracyR2 • 19 replies • 557 views

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TracyR2 (Florida)
Posts: 1

Posted:

My husband and I are building a house and it's a very custom house as we begin to retire the HOA held us up for 8 months in the beginning and at that time covid was still going on so we had many delays and got put back farther with subs and material so now we are into our building of our house 18 months and still have a year to go it is over an 8,000 sqft house and my husband is a contractor and is doing most of the work himself most of the houses in our HOA took 2 years to build because of covid now they are coming to us and going to fine us saying that we are in violation of the Covenants because it says you have to have your house built in a year even though they did not fine the other people that took 2 years. We still have had delays like 8 months with our doors we've ordered our refrigerator over a year ago and it still won't be here till next year. is there anything that we can submit to the HOA as in such like a variance I'm just wondering what are options are..thank you

SheliaH (Indiana)
Posts: 6,964

Posted:

First of all, please use paragraphs and periods – this is one run on sentence and hard to read!

You say the HOA caused the delay for 8 months in the beginning – COVID was part of the reason, but what else happened? Then COVID became a little more manageable, but as you’ve probably heard, many industries have had supply chain issues and labor shortages, which has delayed manufacturing and other things like…home building and home improvement. Did you keep the HOA informed of what was going on with your home and the delays? This is an 8,000-square-foot home, so one should expect it would take time to build it and you knew the covenants said homes had to be built within two years – and how do you know the others didn’t get fined?

If you’re still facing delays, you’ll need to apply for a variance, so I would suggest you contact the board and ask for a hearing where you can explain what’s going on. If you have work that needs to be done inside and out, it may be best for you to focus on getting the outside stuff done. That could be why the board is concerned because there are trucks, mud and construction noises that could be bugging the neighbors. If you can get some sort of target date for the outside work, start there and hopefully, you can do the inside without too much disturbance

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

JoeN6 (Virginia)
Posts: 94

Posted:

I wish I had a nickel for every time I read “ residence must be built within one year “ in restrictions . That is very old . Some how I would try to convince the HOA that timeframe was conceived many years ago and construction has changed dramatically . Tell them that applies to building plans purchased online , stock merrilat cabinets from Home Depot , elkay kitchen sink and vinyl shutters etc. , for a 2500 SF home . ( what is your minimum ? You probably exceeded it twice , what Shiela said above .) It used to be you toe nailed a rafter in the wall and that was it . Now ( especially you Florida) there’s a metal clip , wall strap , the a compleat wind restraint down to the foundation . Things like silt fences, trees save areas and ( are you on a public road?) rock construction entrances didn’t exist when the 12 month duration was concieved .
.

TimB4 (Tennessee)
Posts: 21,059

Posted:

I would get a written statement from your builder about delays in shipping of supplies and labor shortages (as every other business is finding out).

Then take a copy of that statement along with yourself to a meeting of the Board.
Politely explain the issue and your desire to get the house built as quickly as possible.
Ask for their understanding along with the extra time required, as they have done for others.

Keep it polite. More flies with honey type of thing.

TerriS6 (California)
Posts: 3,284

Posted:

In CA, if a board fails to enforce, it loses the ability to enforce. For example, our Declaration provides for architectural review but the board never does this. If they wanted to start doing it now, they wouldn't be able.

MarkM19 (Texas)
Posts: 1,459

Posted:

Tracy,
I am confused. HOAs do not build homes, developers build homes using home builders. If you HOA still under developer control, you could be in for a bumpy ride? The developer has all the control and if you are not using a builder of their choice they may be harassing you. This sounds like the case to me.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 10/24/2023 5:30 AM
In CA, if a board fails to enforce, it loses the ability to enforce.

In California, a board might lose the ability to enforce.

No statute says what TerriS6 says above. Some case law speaks to this, but the case law is as always situation specific.

Terri, in advance, I agree to disagree.

TerriS6 (California)
Posts: 3,284

Posted:

The contrarian speaks. ElleN's goal in life is to attempt to diminish others to elevate his/her ego and his/her pretend status as a legal expert.

TerriS6 (California)
Posts: 3,284

Posted:

When I'm commenting on a post from outside California, my purpose is to suggest an avenue for the poster to explore in their own state. It serves no purpose to explain in detail what happens in my state.

ElleN (Idaho)
Posts: 4,420

Posted:

Terri, on this topic you are flatly wrong about the law in California.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By ElleN on 10/24/2023 9:49 AM
Terri, on this topic you are flatly wrong about the law in California.

The god has spoken.

LizD3 (California)
Posts: 200

Posted:

I have some recollection of a lawyer in a past condo discussing issues with selective enforcement / cherry-picking of enforcement (along the lines of the HOA enforces a rule with this condo but not that one or the HOA doesn’t enforce a rule this year but then they try to enforce it next year). If an HOA doesn’t enforce a rule fairly and consistently, I seem to remember the lawyer said they lose the right to enforce it (as in, a homeowner can fight against that in court and stands a good chance to win). So I think Terri is right, practically speaking.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By LizD3 on 10/24/2023 7:30 PM
I have some recollection of a lawyer in a past condo discussing issues with selective enforcement / cherry-picking of enforcement (along the lines of the HOA enforces a rule with this condo but not that one or the HOA doesn’t enforce a rule this year but then they try to enforce it next year). If an HOA doesn’t enforce a rule fairly and consistently, I seem to remember the lawyer said they lose the right to enforce it (as in, a homeowner can fight against that in court and stands a good chance to win).

Under these circumstances (failure to enforce fairly and consistently), the HOA might lose the right to enforce the rule or covenant. But it's not guaranteed the HOA will lose the right. It is very much situation specific. This is more about a risk a HOA takes when it does not enforce a covenant or rule.

A blanket statement like Terri's does not do justice, AFAIC. I do not think directors and owners should come here and think that, if a covenant was not enforced in a certain situation, the HOA loses the right to enforce the covenant down the road. Whether this is so "just depends."

TimB4 (Tennessee)
Posts: 21,059

Posted:

Typically, and check your governing documents to be sure, an Association has the right to enforce, just as any member has a right to enforce, the covenants. Just as with any member, the Association, typically, is not required to enforce.

However, if the Association chooses to enforce, they must enforce equally and against all known violators.

A covenant may become unenforceable if an Association fails to act once they are aware.
This varies by State.

I'll look up some references when I have more time.

MarkM19 (Texas)
Posts: 1,459

Posted:

Tim and All,
I believe the term I have heard be used is Grandfathered.

In California we had an owner who worked for the local Cable company since the day he bought his home. Our Bylaws stated that No Commercial trucks could be parked outside of an owner's garage. After 6 years the board finally decided that they were going to try and start enforcing the Commercial Vehicle violation. He stated that because he had not been cited for 6 years prior meaning the rule was not enforced, he should be grandfathered and allowed to have his vehicle parked in his driveway.

Has anyone taken this type of case to the end? We didn't

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By MarkM19 on 10/25/2023 5:57 AM
Tim and All,
I believe the term I have heard be used is Grandfathered.

In California we had an owner who worked for the local Cable company since the day he bought his home. Our Bylaws stated that No Commercial trucks could be parked outside of an owner's garage. After 6 years the board finally decided that they were going to try and start enforcing the Commercial Vehicle violation. He stated that because he had not been cited for 6 years prior meaning the rule was not enforced, he should be grandfathered and allowed to have his vehicle parked in his driveway.

Has anyone taken this type of case to the end? We didn't

Brown v. Montage at Mission Hills, Inc.

Owner Brown had operated a short term rental, association amended gov docs to limit rentals to 30+ days and tried to stop Brown's STR. Civil Code sec 4740 exempted Brown from restriction because she held title prior to amendment being recorded.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

IRONWOOD OWNERS ASSOCIATION IX V. SOLOMON
(1986) 178 Cal.App.3d 766

"4a) Despite the Association’s being correct in its contention the Solomons violated the CCRs by failing to submit a plan, more was required to establish its right to enforce the CCRs by mandatory injunction.[FN 5] (5) When a homeowners’ association seeks to enforce the provisions of its CCRs to compel an act by one of its member owners, it is incumbent upon it to show that it has followed its own standards and procedures prior to pursuing such a remedy, that those procedures were fair and reasonable and that its substantive decision was made in good faith, and is reasonable, not arbitrary or capricious. (Cohen v. Kite Hill Community Assn. (1983) 142 Cal. App.3d 642, 650-651 [191 Cal. Rptr. 209], and cases there cited; Laguna Royale Owners Assn. v. Darger (1981) 119 Cal. App.3d 670, 683-684 [174 Cal. Rptr. 136]; cf. Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 550 [116 Cal. Rptr. 245, 526 P.2d 253]; Lewin v. St. Joseph Hospital of Orange (1978) 82 Cal. App.3d 368, 388 [146 Cal. Rptr. 892]; also cf. Code Civ. Proc., § 1094.5.)"

LizD3 (California)
Posts: 200

Posted:

"... not arbitrary or capricious ..."

And there you have it.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By TimB4 on 10/25/2023 5:37 AM

I'll look up some references when I have more time.

I've had some time and found the following:

Simply Unenforceable: HOA Covenants and How They Can Go Too Far from a homeowner education company.

That link does discuss losing the right to enforce a covenant for various reasons, including Inconsistent, Arbitrary, or Capricious Enforcement

Quote:

Mark,

Awhile ago I looked up grandfathering. What I discovered is that if grandfathering is not written into the covenant (or law), then it does not exist.
One of the best examples I can provide is the ADA act. Buildings open to the public (with a few exceptions) had to become ADA compliant. There was no grandfathering.

Therefore, in the situation you describe, as long as your board enforces the covenant equally they can enforce it on that individual. They may scream grandfathering but that is not how it works. If the board wants to grandfather that covenant, they would have to amend the covenants to allow the grandfathering.

see:

"Grandfathered In", a Misunderstood and Oft Misused Term in HOA Meetings from a law firm

Why "Grandfathering" Is Important for HOA Property Policies from a management company

Can you explain "grandfathering" as it applies to HOA covenant violations? from a Real Estate law answer site

Can HOA in FL grandfather rather than enforce? from a FL attorney.

Take the time to read all the links (doesn't take long).
It will be educational!

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By TimB4 on 10/25/2023 11:45 AM

Can HOA in FL grandfather rather than enforce? from a FL attorney.

Correction - the person who asked the question was from FL.
The attorney answers the question but goes into specifics about CA.

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