Subsequent owners, original issues:

Started by BrianB • 35 replies • 2051 views

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BrianB (California)
Posts: 2,820

Posted:

Has anyone run across this in their HOA's, or in their Ownership of homes?

I just sold my home in an HOA. In my backyard, I have a porch and a sitting area that are both covered. Neither one technically required a building permit (I won both arguements with the city code officers). Neither one required ARC approval, because of a loophole in the CC&R's that I utilized (as well as there being no ARC for the 14 years of our HOA existence). So, these structures are legal, and I have all the evidence I need to defend them should the question be raised again.

However, now that I have sold the house... I doubt that the new owners can argue the case as well as I could. I could defend them, but I don't know the skill level of the new owners at the twists and turns of Association "law". So, if the HOA were to undertake a review of the situation again, or someone were to complain and raise the issues again, it is likely they will not use the proper defenses, and lose.

I know i can tell the new owners "Those are legal, don't let anyone tell you different", but how do i properly convey several months of legal research, the subtle nuances of loopholes, the criticality of the difference between a ROOF and a SHADE, Free-standing versus Supported, etc.? there are no "approvals" from the board, because there was nothing the board was legally required to approve, issue an exemption for, etc..

Has anyone else ever run into a case where a new owner just didn't have the knowledge to defend a paint scheme, landscape item, etc., and the board (or other owners) sees that as an opportunity to change things again, or to right what they perceived was a wrong?

DonnaS (Tennessee)
Posts: 5,671

Posted:

Brian,
Why in the first place would you think that it is your responsibility to get involved. If the new owners had done their homework, they might have seen that there was a code/ building gap on the back area and some HOA issues.

So you built without a permit and an approval from your association? WHY??? I never understand why people do what you did other than to try and beat the system and get away without paying your way.

Technicalities? You had to work hard to get your way out of those requirements. Would it not have been easier just to follow the books and permits?

DonnaS (Tennessee)
Posts: 5,671

Posted:

I FORGOT TO ADD, HOW ABOUT THE DISCLOSURE FORM THAT YOU FILLED OUT AT SALE TIME? DID YOU FORGET TO ADD THAT ON THERE?

RobertR1 (South Carolina)
Posts: 5,164

Posted:

BrianB,
You sold the house the people bought the house.....done deal.

I imagine to you that sounds cold but as always on this site we can give advise and whoever will likely decide what they want to do. I think you know what the advice is, but maybe feel some personel involvement with your buyer. Do yourself and them a favor and never speak of the house with them. Golf, ski, camp, cocktail up a storm with them, talk about your neighbors houses but never mention theirs (and it does belong to them.)

DJ1 (Ontario)
Posts: 798

Posted:

Quote:

Posted By DonnaS on 02/27/2008 3:43 PM

Brian,
Why in the first place would you think that it is your responsibility to get involved. If the new owners had done their homework, they might have seen that there was a code/ building gap on the back area and some HOA issues.

So you built without a permit and an approval from your association? WHY??? I never understand why people do what you did other than to try and beat the system and get away without paying your way.

Technicalities? You had to work hard to get your way out of those requirements. Would it not have been easier just to follow the books and permits?

He said he built it without a permit or ARC approval because it wasn't required. Why get a permit or approval from the ARC if it isn't needed?

BrianB (California)
Posts: 2,820

Posted:

thanks DJ, for the defense... you read the post well enough... and the others, i guess i do just have to move forward and not look back. I just know that a couple owners are going to make trouble for the new owners and try to spin the situation their way.

For those who didn't, there was no code required by the city, and no approval required by the HOA. Why in the world would I get permits i don't need? And I DID, actually, disclose the conditions, simply by signing under oath that there were NO code violations or HOA violations. I disclosed by disclosing that there was nothing to disclose.

HaroldS (Arizona)
Posts: 906

Posted:

I don't see a problem either. That is in the back yard; so is it visible from the street or neighboring property? Our documents require something to be visible to a person six feet tall, standing at ground level on any part of neighboring property. (We have six foot fences.) Since you had no ARC to send your request to, how could that be a problem now? That fact should be self explaining to anyone inquiring now.
My pet peeve with this requirement is that there are no restrictions on PLANTING anything that is visible from adjacent property. So that we can have 20 feet tall bamboo that scatter debris onto adjacent property, but that is o.k. But a child's play set is taboo if it can be seen.

GeraldT4
Posts: 1,022

Posted:

BrianB - Hard to walk away from, eh? : )

BrianB (California)
Posts: 2,820

Posted:

Yes, it is hard to walk away. harder than i thought. LOL, and i don't even like the new buyers. I just don't want the neighbors to use my absence to stir up trouble.

I wish our HOA had a better written "backyard" rule... ours simply says that if an item is "visible from neighboring property", it falls under this and that rule.

I own(ed) a two story house. 3/4s of the HOA was visible from somewhere on my property. Thankfully, the rest of the codes were so poorly written, it rarely mattered. nothing could be enforced.

GeraldT4
Posts: 1,022

Posted:

BrianB - Once gone from the association, or off the Board, there's nothing you can have a chance at doing to govern the situation. It will unfold, sometimes even if you're not gone. So...you know what that means, right?

HaroldS (Arizona)
Posts: 906

Posted:

We have two story and one story houses mixed together. Something visible from a second story doesn't count. Has to be like I said - 6 foot person standing at ground level.

BrianB (California)
Posts: 2,820

Posted:

yesh, Gerald...."Just let it go"...

PaulM (Pennsylvania)
Posts: 1,347

Posted:

BrianB: IF you have sold and moved on or away, why oh why??? would you even think you could or should put yourself back there for whatever reason.

What you "disclosed" is correct. There were no violations. Let sleeping dogs lie, and enjoy your new home. Find another cause to fight, if needed.

MicheleD (Kentucky)
Posts: 4,491

Posted:

I agree that he should just walk away. Most likely nothing will be done anyway.

But I am intrigued by his allegations that no ARC, (or association or board) approval was "necessary"

"Neither one required ARC approval, because of a loophole in the CC&R's that I utilized (as well as there being no ARC for the 14 years of our HOA existence)."

Interesting twist. "loophole in the CC&Rs that" you utilized.

There are many many many things that don't require city or county "permit" or "code" approval that still require HOA approval (or sign off) prior to building.

I find it interesting that he had all this "proof" ready and waiting should there be a "need."

I especially like his vague reference to "nuance" and "subtle" in terms of "roof" or "shade."

We're only taking his word based on his "nuance" of interpretation that an HOA approval wasn't "required."

He may be correct since nothing apparently was ever formally brought against him by the HOA. It appears to me that only CITY code people were involved, and he apparently won that conflict, yet winning that one doesn't necessarily mean a challenge by the HOA would not be successful on HOA restrictions.

"So, if the HOA were to undertake a review of the situation again, or someone were to complain and raise the issues again, it is likely they will not use the proper defenses, and lose. "

I find the language "they will not use the PROPER defenses, and lose."

Either it is legal or it isn't, per you CC&Rs. If it is, then they will prevail, regardless, if it is not, then just being a tap-dancer with language is no defense.

Anyway, I agree with Donna.

DJ1 (Ontario)
Posts: 798

Posted:

So Michele are you suggesting that if one believes approval is not required, they should still apply for permits or submit things to ARC?
Donna appears to believe he should just get a permit or ARC approval than to do what he did and read the rules/requirements and make an assessment of whether he needed to submit it for approval.

Me, I would read the documents and if they aren't applicable for whatever reason, a loophole or whatever, I go ahead and do the work.

Whether Correct or incorrect, Brian doesn't believe approval was required. He may be challenged on it but he referred to the documents before deciding...I thought that was what members are supposed to do.

If everyone routinely starts submitting permit applications or requests to ARCs, 'just in case' it is covered, and lets them determine whether the work falls under their mandate or not, the system would bog down AND they would needlessly incur expenses as would the HOA.

IF he believes approval is not required but still does a general enquiry to the local government (not a permit application) they will tell him if and why he does, or does not need a permit.

IF he believes ARC approval is not required, how does he do a general inquiry to the HOA, or is he just supposed to submit an ARC request and let them determine if they feel it is covered or not, possibly delaying his work.

A cautious person might just submit apps in case they are wrong but if the app is denied do you think the applicant is not going to go ahead if they still believe it doesn't require approval but they did so as a courtesy?

BrianB (California)
Posts: 2,820

Posted:

our rules contain a huge loophole:

"in any event, if no suit is engendered before completion of the project, approval of the ARC is automatically granted."

Which means that since no one complained, the project is legal. I also made sure my projects were built in sections, and each project was complete within one day, without complaint.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Quote:

Posted By BrianB on 02/28/2008 8:56 AM
our rules contain a huge loophole:

"in any event, if no suit is engendered before completion of the project, approval of the ARC is automatically granted."

Which means that since no one complained, the project is legal. I also made sure my projects were built in sections, and each project was complete within one day, without complaint.

DJ, I think this answers your question to me.

The "loophole" employed? Apparently "sneakiness."

Interesting "loophole."

Build it behind everyone's back, then if no one notices, bingo! No approval "required."

Nice.

But to be direct, DJ, if the language of the CC&Rs is truly silent on a specific type of project, then, no, don't bother getting an approval.

However, if there is any sort of "nuance" or vagueness, then yes, I believe that at the very least ASKING if an approval is required is the way to go.

MicheleD (Kentucky)
Posts: 4,491

Posted:

PS: Even if everyone on the neighborhood suddenly decided on the same day to embark on a "questionable" project and requested review or clarification, I still doubt it would "bog" any system down to the point of paralysis.

A bit of hyperbole.

GeraldT4
Posts: 1,022

Posted:

It's important to remember that BrianB was a former Board member of his now former association. Wouldn't he know how the whole process works? : )

BrianB (California)
Posts: 2,820

Posted:

Somedays Gerald, i think I was the president only because no one else ever bothered to care. I know i was the only one who ever actually bothered to read the rules.

Michelle, i would consider it "sneaky" if I wrote the rules, and bent them to my advantage. But since I had nothing to do with the writing of them, I do not feel i did anything sneaky by simply following them. Just because I play the game better than others, doesn't mean I am cheating. It could be I just read and follow the rules better.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

To all,
Since maybe Michelle don't want to really say what she is referring to (and if I am wrong Michelle), forgive me:

When you enter the game of associations you consent to make it your responsibility to make the association better. If you are a Board member, that is your responsibility, same thing if you are a member without designated duties. I think Michele believes you have got in the poker game and because you want to look for ways to serve your personal agendas. I am sure she is not saying you are acting illegal or breaking some hidden rules. But the question she raises is what you did and recommend, good for the real property. Now it may in your eyes look fine and maybe in everyones eyes it is great, but if this is the case then why not make it a part of making the association better. Also as a Board member your first responsibility is to the association and then you worry about your agenda. I believe it would work better if these "gaps" in the restrictions are closed, for the good of the community.

I also understand I am far from perfect and have done similar tricks, I don''t anymore.

DonnaS (Tennessee)
Posts: 5,671

Posted:

This is troublesome to me.

I have a porch and a sitting area that are both covered. Neither one -- "TECHNICALLY"-- required a building permit " (I won both arguements with the city code officers)". Neither one required ARC approval," Because of a loophole" in the CC&R's" that I utilized (as well as there being no ARC for the 14 years of our HOA existence). So, these structures are legal, and I have all the evidence I need to defend them should the question be raised again.

"Technically and Because of a Loophole?" Sounds to me like you should have spent more time doing things that required a whole lot less justification than spending so much time argueing against the requirements. Just my observation being that we find people every day on this site who are trying to skirt around the system.

BrianB (California)
Posts: 2,820

Posted:

I couldn't work within the system to change the rules: That would have required a change to our CC&R's, which would have required a vote of the members, a large majority, etc.. This is the same HOA that could not hold an annual meeting for the past 6 years because we could not even get more than 4 owners to attend the meeting (out of 40). If an HOA can't get an annual meeting quorum, what chance do they have of getting a 2/3 majority vote? I tried, but no one was interested.

Secondly, why should I "work to make the system better"? Who defines better? It worked for 12 years, I certainly have no pretenses that I know more than the original authors of the codes. They were all brilliant scholars and professional developers of associations, I am a mere student of their work. I simply assume that the system is "good", and strive to work WITHIN it. Using the rules the original founding fathers built into it. Who am I to say the system is bad, broken, etc.? I do not have that much hubris. Perhaps others do, but not I. I simply work with what is given me.

Donna, I never argued AGAINST the requirements like you say I did. I argued exactly FOR them. The rule is "this", I simply defended that rule, as written. You will rarely win argueing AGAINST a requirement, which is why I don't waste my time doing it. The rule stated I could build anything I wanted as long as no one complained. All i did was exactly what the rule allowed. I FOLLOWED the rule. I never broke it, argued against it, wanted it changed, etc.. All i wanted was to follow it, exactly as it was written. If the original authors wanted a different rule, they should have written it differently. As it is, they obviously wanted to allow people to build whatever they wanted as long as no one complained, because that is what they bound into law by their words.

Lastly Donna, I want to know: where did i skirt around the system? Where did I step outside the rules, where did i do anything outside the laws, rules, or regulations? Where did i cross the boundries of the system to skirt "around" it. I tend to be very careful in my skirting to stay inside the field of play.

DJ1 (Ontario)
Posts: 798

Posted:

Michele,

I guess what I am questioning is the 'questioning' process one would go thru with the HOA to determine if an improvement falls under the requirement to submit an ARC request.

It seems the process is to submit a request to the ARC, but I don't see the a pre-request process that one undertakes to determine if the request is necessary.

Should I phone/email the Prez and ask if a ARC request is required for my improvement, or do I ask a ARC member, or do I have to ask all the board, or do I ask all the ARC if I have to submit it?

So "ASKING" may not be so simple or timely in getting a response. Sure hope I don't have to ask an ARC that doesn't like me. There are usually time limits to respond to ARC requests but there sure aren't questions "ASKING" whether I have to submit a ARC request or not! And lets say they take a month to answer yes. Then I have to wait again for once submitting the ARC request!

RE: Hyperbole, per bogging things down. Well now we have the expectation to submit requests on whether I need to submit my plan, as well as the existing workload of approving submitted plans. Both take time for a PROPER response by the appropriate committee..unless you want to assign it to the discretion of one person who may say ARC isn't required only later to have a ARC committee say it was.

The more levels involved in a process the more wieldy it gets.

Donna, "troubling". Isn't that what the building code and the CCR's are all about? If they are NOT written to cover a situation that the HOA wants covered they better change them in the future.

I wanted to put in a home standby generator. I checked the Building code and it wasn't listed BUT I called the building department to confirm a permit wasn't needed. The agreed it wasn't covered but did provide me with some helpful guidance which I gratefully accepted. I also submitted it to the developer ARC who said he preferred it in the back yard instead of side of the house. Unfortunately these come with a ~20' cabling system which limits distance to the electrical panel (it was ~100' to the back). He approved it at the side...but then again in hindsight he likely knew he hadn't registered the CCR's on our property so if he denied he'd be screwed because if we challenged the denial it would have led to us learning THAT years sooner than we did AND put his ongoing building and selling of homes in a HOA in jeopardy!

I see CCR'S that are written that can be twisted by Boards as well. Something may not be covered under the expected clause but suddenly they will apply the 'nuisance' or 'quiet enjoyment' CCR clauses that are much more vague.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Brian,
We should, if we could, not get involved with the White hats fussing with the White Hats.
Your response to Donna brings up an interesting point. What does a Home Owner do when he just can't move city hall and get anything constructive done. Now that is a very very difficult question and that theme repeats and repeats all the time on this site. Those of us that spend their time this way are never sure we are helping and hindering because we are shooting a shot gun instead of a rifle. So we try to zero in and often are off the mark. Not because we are wrong so much as because we are to remote from the problem and have to live it day by day. We know, all of us, that apathy is bad and associations are riddled with it. So we recommend that associations develop a functioning society, which is good advice but what can we actually do? So, we, all of us hopefully, try to learn about the system and hope we can suggest better ways to help.

Also the bottom line is how do we really know the reason for all this mail we answer. We can't judge so we have to give good advice no matter the personal agenda of the poster. Accepting that to be the most effective way to make a change, we want to take the high road, and not race through this as some kind of radar detector for your car. Just seems to be the way to go, to me.

GeraldT4
Posts: 1,022

Posted:

BrianB - WOW!! This sounds like one heck of a swan song. Is that what's going on here? You may not have to the be sole heir of making the association "better". However, in all fairness I don't think you should be the sole heir in keeping the association "worse" forever. You stated, "So, if the HOA were to undertake a review of the situation again, or someone were to complain and raise the issues again, it is likely they will not use the proper defenses, and lose.". According to you if no one complains during the modification than they can't do anything about it. So what is there to loose from the old situation. As for your denial to DonnaS of skirting around the system, didn't you state, "I know i can tell the new owners "Those are legal, don't let anyone tell you different", but how do i properly convey several months of legal research, the subtle nuances of loopholes,...". Sounds to me like a bit of skirting, don't you think?

Don't get me wrong, I don't expect you to single-handedly overcome owner apathy and feel for your situation that you can't even get 1/10 of the entire membership to attend an annual meeting.

DJ1 (Ontario)
Posts: 798

Posted:

While Brian referred to 'loopholes', it seems only the HOA can determine if their CCR's contain a 'loophole'.

That process would involve determining if something was done/built that they 'thought' was covered under their CCR's but in reality wasn't due to the wording in the CCR's. Then there is a 'loophole' in which they need to determine if they want to address.

MicheleD (Kentucky)
Posts: 4,491

Posted:

I still wholeheartedly disagree, and find the entire scenario he described as indeed "sneaky" and in addition, wholly unethical.

AND since, if I understand the details properly, he was a member of the board when he did his sneaky loopholeing, he also contributed to the bad reputation that board members get when people throw out the charge that they consider themselves above or better than the rules. There may well have been neighbors who would have thrown up a protest, but, what the heck, he's on the board, I guess he got the right permissions. . .

I have one word for the entire thing: despicable.

BrianB (California)
Posts: 2,820

Posted:

And yet michelle, i ask you: what exactly was sneaky or unethical about following the rules?

Was it that I took the time to read the rules? That I bothered to understand them? That I followed them TO THE LETTER? Which part was sneaky? Which part violates ethics?

MicheleD (Kentucky)
Posts: 4,491

Posted:

The part where you purposely, and through great lengths, hid your projects in order to get around their being "discovered" before the "deadline."

Contemptible.

No matter how you want to parse it, by your own admission you were deceptive and deceitful in trying to slip your projects through un-noticed. Split hairs on the "legalness" of getting to keep your project because it wasn't discovered and challenged in time if you want, but it still boils down to the same thing.

Appalling.

Distasteful to say the least.

"I also made sure my projects were built in sections, and each project was complete within one day, without complaint. "

DJ1 (Ontario)
Posts: 798

Posted:

Whomever put that clause in is the fool not Brian!

I mean come on, ARC is deemed approved if they don't start a lawsuit before the project is completed!

Tisn't the homeowners fault it would take an ARC a fair amount of time to initiate a lawsuit.

I'm still with Brian. He read the CCR's and complied with them. In fact he made the extra effort to complete the project in a timely manner. Should be commended, hehehe.

Go back to the Board to get the rules changed Michele....which seems to be extremely difficult for many HOA's to get enough votes.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Just a question to be considered.

How do you believe a poster would take advice after reading this post in total?

I suggest the poster will have to weigh what his/her "ethics" direct him/her to consider and who's advice to follow.

I hope the folks reading this are able to evaluate what is being said.

BrianB (California)
Posts: 2,820

Posted:

Quote:

Posted By MicheleD on 02/28/2008 4:58 PM
The part where you purposely, and through great lengths, hid your projects in order to get around their being "discovered" before the "deadline."

Contemptible.

No matter how you want to parse it, by your own admission you were deceptive and deceitful in trying to slip your projects through un-noticed. Split hairs on the "legalness" of getting to keep your project because it wasn't discovered and challenged in time if you want, but it still boils down to the same thing.

Appalling.

Distasteful to say the least.

"I also made sure my projects were built in sections, and each project was complete within one day, without complaint. "

Hid my projects?Deceptive and deceitful? THat's getting close to slander.

i built them in plain sight in my yard. I did not construct them under cover of darkness, or under cover or tarp, inside my garage, etc.. I hauled lumber from the truck to the yard, hammered and sawed in the middle of the weekend, talked to my neighbors as they watched, etc.. How exactly did I hide them?

Yes, i built in sections: so what? I built a 3 inch raised deck on my back porch over fourth of july weekend. Then, a year later, i added a cover over it on the labor day weekend. What I did, that many of my own neighbors did not do, was complete each stage of a project quickly and on time... unlike others who had a half stone wall sit for two years, uncompleted. Another started a porch, and had posts standing in their yard for a year, and a half cover on it unfinished for six months.

Would that have been more preferable to you? Should I have left the shingles off my cover for a year, so it wasn't done before the deadline? Is it so offensive that I planned what i needed, and how best to maximize my use of borrowed tools, to finish a project in as quick a time as possible? Is it ethically wrong, deceptive or deceitful that I retained the use of an excellent carpenter to help me build quickly, safely, and with a minimum of wasted time, wood, and other resources?

let me see if i understand my sins:

I read the rules of my HOA, and followed them to the letter
I maximized my efficiency by planning and making best use of the resources and networks I had.
I completely finished my projects quickly, rather than leave them in states of inattention, disrepair, half-built status, unsafe, etc..
I checked with the city codes and inspectors, and ensured that I was absolutely in compliance with their rules and regulations. Even when one came to inspect my projects, he concluded I did absolutely nothing against the letter of the city codes.

GeraldT4
Posts: 1,022

Posted:

BrianB - Who are the new owners going to argue their case to if it is challenged, the city code officials, the board? Doesn't seem there is anything to worry about as far as the new owners are concerned. The title search proved clean, correct? As I suggested, let it go, enjoy your new digs, before you dig yourself further into old business. Just a friendly suggestion. : )

TracyT (Maryland)
Posts: 228

Posted:

BrianB,

When I sold my house I left, for the new owners, my ARC approvals (and landscape plan), appliance manuals and warranties etc. In your case I would simply say here is a copy of the research that justifies the improvements (patio and shade cover) . . .

Good luck.
Tracy

JC3
Posts: 290

Posted:

BrianB followed the rules. I fully support him.

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