Nonconforming Structure Notice

Our association in Georgia has a resident who has erected a nonconforming structure on his lot. We, the board, have decided that we intend to exercise the remedies afforded us by the CCRs, which means giving notice to either remove it or we'll remove it for him. We have also indicated that we are willing to allow him to initiate the approval process, as long as he does so within the timeframe identified in the notice, and have given no guarantee that the structure will be approved.

My question is this: This home is currently for sale. Is the resident required to disclose the situation during the sales process, or should we do it for him by serving notice on the realtor as well? Our fear is that (although pretty unlikely in this market), the property will change hands before the time allowed by our notice(a reasonable 30 days) expires.

Not me. I agree totally.

If this home changes hands, and the violation is still standing, the new owner could claim that he was never informed about the violation, so you all can go stuff it.

The seller has been notified about the violation and you didn't get a response. To protect the process, I think that the SELLER's real estate agent needs to know about the violation - ASAP. You must be sure the right parties are notified about the issue. The seller is playing dumb.

I guess, from our position, we are relying on a whole lot of people to do the right thing (through disclosure, etc.), when it's been our experience things do not always happen that way (failure of new owners to be issued CCRs at closing, for example). Another scenario could involve the sale of the home going through, and all of a sudden we show up with bulldozers to remove the structure much to the surprise of the new owner. I know that a debt, eg unpaid dues, follows the owner of the property at the time the dues were payable, but if the Association's only real mechanism to recover the costs associated with restoring the property to its original condition is by a lien on the title of the property, I would fear a judge's reaction when he finds out the lien was placed against a deed transferred to another owner.

Again, our intention is to not contact any potential buyers directly, but rather convey the information to the realtor, who must disclose or risk his/her license. It just seems to us that too many scenarios exist under which we'd end up spending a lot of money chasing the ghost of the previous owner.

Agreed regarding the unannounced and unescorted entry. From what I understand, it is difficult to even find a crew willing to do it. Of course, this entire exchange has been based on the premise that the owner does not do the right thing. Presumptive on our part, but we have some history with this owner. We just don't want to get left holding the proverbial bag if the property sells. Also don't want to risk alienating the new owner. However, rules is rules, and residents are complaining.

I've done a little informal asking around in the local real estate community -- asking realtors I know whether or not they would want to know if they were the listing agent. Concensus seems to be that we should copy the realtor. FWIW.

I think DJ makes a great statement...even if he sells you still have recourse with the new owner.

JamesB2: I'm curious as to the Board wanting to take action 'after the fact'. You state the Board:
- has 'history' with this homeowner on other issues
- would need a bulldozer to dismantle the structure (size???)
- owner did not follow 'rules' re structure

You now, at sale of unit, want to take action against the present owner, or possibly the new owner, and do not know how to proceed. Did the Board serve this owner notice at start of the structure? Why did the Board allow the structure, once began, to continue without proper procedure being followed?

It sounds as if any action on the Board's part may be just a little too late.

PaulM,

The structure was erected in the last two weeks, and was done without anyone noticing until it was finished (our community is made up of multi-acre lots). All construction activity occurred at times when no one in the immediate area was home. The home has been on the market for over two months. I strongly suspect that the building was erected at the suggestion of the realtor in order to help the home sell -- it's a slab home with a 1.5 car garage and the offending structure is a 12'x16' shed. CCRs are very clear -- no outbuilding shall be erected either temporary or permanent. Goes on to say that in the event the structure is allowed, it must be built on poured slab or foundation.

I won't go into the 'history' other than to say that the owner is clearly aware of the CCRs, because he has used them as a tool in the past to suit his interests.

As for being too late, I disagree 100%. Our CCRs clearly state that remedy is return of the property to its previous condition by the Association with costs (including legal fees) levied against the owner through special assessment. The wording of the CCRs even indicates that a future Board could take such action against any existing structure that was built without Board approval. Point is, if you build the structure without approval, you are at risk to lose it at any point in the future. My research would indicate that Georgia tends to side with the Association on these types of issue, and certainly the courts are part of the ultimate solution assuming the owner does not cooperate. I have no question that the CCRs are enforcable. My original inquiry was whether or not is was appropriate to involve the realtor.

JamesB2: You may want to consult your local municipal codes/laws on construction of a shed. Perhaps a permit needed to be issued, and if so, that is the time when the local officials tend to get involved in community construction projects.

In this case, you may have them as your ally, especially if a permit was necessary but not secured, and further, if certain codes/bldg. standards were not met. It may be worth a try for you to contact the local office to learn of their regulations which would apply to anyone living in the municipality.

James,

Just when you say you've never heard of such a thing, someone says "well, that's what my docs say.!

Now, you say GA does address HOA by statute; so is there a statute regarding disclosure to a potential buyer. This is definitely a disclosure issue so perhaps the realtor should be informed of the problem his client has created. A realtor once told me that once you tell a realtor something about a particular property they are obligated to pass on the info to a potential buyer. Of course another realtor could sell the property and the buyer would not be aware of what you told the listing agent.

Michele,

I guess it can get touchy when there is a sale in progress. However, I just don't think it's fair for the new homeowner to inherit this type of a problem. IMO, it just doesn't promote a very friendly atmosphere for a new homeowner. Just my opinion, of course. There are a lot of rules I don't think is right, but if I'm a board member I will enforce them and I'm sure you are the same.

Mary:

It may not be right but the seller has the legal obligation to disclose. The buyer does have recourse if it wasn't disclosed to sue the seller for any damages as a result of it. As a potential buyer I wouldn't be mad at the association, I would be mad at the seller for misleading and lying.

Mary IMO this would be no different than any other problem the seller has direct knowledge of and which may affect the buyer's ability to make an informed decision. Because ultimately the buyer will be the one responsible to rectify the problem if the sale goes through before the shed comes down, even if they can go after the seller for compensation. What if that shed is the one feature that sold them on the property as compared to another with no shed. Seems silly I know but I have seen people make decisions over similar things.