Declarant violating Declarations

Started by JoanR • 5 replies • 1338 views

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JoanR (North Carolina)
Posts: 24

Posted:

I am in a new development still under Declarant control. Our Declarations indicate the minimum heated square footage for homes in each section of the development. The Declarant/developer is now allowing builders to pull permits for much smaller homes. The town issuing the permits has indicated to me that the Declarations are a "private" document between the homeowners and the Declarant and even though it is recorded with the County they do not refer to the Declarations for anything. I have verified that the Declarations have not been amended to reflect the smaller square footage. Even if this amendment is in process, the permits were pulled long before the 30-day time frame for the declarations to be recorded. The developer has reneged on many things within the community by either receiving planning department approval, amending the Declarations and of course mostly for amenities he has promised verbally even if it was in a room full of owners that he is not bound to honor since it was verbal. Because of all of these situations, I do not want to take him on directly if there is any type of agency or government office that can assist me. Please advise where I could go for help in North Carolina.

GlenL (Ohio)
Posts: 5,491

Posted:

Since the Declarant is still in control, he unfortunately can do pretty much as he pleases. Because he is in effect the ACC he can give variances' to the written CC&R's. If you read through the posts here you will find it is a common occurrence which usually comes back to bite the HOA once he is gone.

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DonnaS (Tennessee)
Posts: 5,671

Posted:

We have a perfect example of this very thing going on here in South Florida. A very big National Building Corp has an upscale developement with homes required to be 3200 sq feet for a single story and 3800 for a 2 story home.
Having almost a building shutdown,they decided to build "spec" houses between the existing homes and the sq. footage is 2400 sq foot.There has NOT been turnover yet The owners already in their homes are taking the builder to court but it sure does not look promising. The ARC guidelines say the larger square footage as requirements for homes BUT as all have pointed out, a Developer can change any of the existing documents as they feel nescessary. In this case, to sell the lots off.

HaroldS (Arizona)
Posts: 906

Posted:

So true. There is an advantage to buying while the declarant is still in control in that you can usually get approval for changes a neighbor operated HOA would probably never approve. At the same time, as an owner, you are subject to changes at any time, such as this case, beyond your control, which could affect your property values. Not only that, but you are also subject to the developer quitting or going bankrupt so that remaining lots or promised amenities are not built out. This is today an even more likely threat.
Our builder quit and sold the remaining lots, but the HOA had been turned over by then and we could control the building of the remaining homes. The only thing we missed was that the placement of the single and double garage doors were reversed from the original builder's plan! I am so glad to be in a built-out and completed HOA.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

It's funny, we have had folks post on this site how wonderful the developer was during turnover and I have no reason to doubt them and they are the lucky ones. But this current post clearly demostrates the developer is not motivated by how the changes he makes, effects the present homeowner. I, as everyone else doubt there is much you can do, unless it would be through the county or city offices, and that's been tried. But, it sure should serve as a reminder when turn over comes that the association pay attention to business and don't play games or buddies with the developer. Strictly business and double checked, and make the sure you get some form of warranty on things such as roads, etc. Even then it is iffy given the financial climate of today.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

I'm afraid I do not completely agree here.

No one, not even the declarant, can violate the declaration once it has been filed. At least, not in my state. However, the declarant may retain certain development rights which are described in the declaration. So, while it may appear that the declaration is being violated, you need to find out what the development rights are. You should check your state laws to see what the declarant is permitted to do and what he is not permitted to do. If you believe the declarant is violating the declaration, I would suggest you seek the advice of an attorney that specializes in community association law.

While this may be the "official" answer, the practical one is that it's going to cost money to fight the declarant in court. Furthermore, unless you can prove you were actually harmed by the declarant's actions (ie., your home actually lost value), you probably will have a difficult time winning your case. The declarant may get off with just a slap on the wrist and you still have to pay your lawyer.

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