Adding a property to existing "restrictions"

Started by CharlotteJ1 • 7 replies • 2231 views

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CharlotteJ1
Posts: 3

Posted:

I live in a small (20 home) community that was development in the 70's. The developer imposed "restrictions" on all lots except one, reason being because at the time all lots, except the one, were built with well and septic. This last lot in question did (and does not) perk for building so it was intentionally left out for this reason... the developer assumed this land was worthless. It's recently changed hands and someone wants to build a daycare on it. The rest of the residents, who are bound by these restrictions, feel that since this lot if considered "buildable" now, as this new person wants to have city water run up to it, the "restrictions" should be updated to incorporate this lot so it has to adhere to the same restrictions the rest of us do since it's part of this community. I've been told it can't be done unless the new land owner agrees to it. However, we know this person won't because the restrictions will not allow for a daycare or any business. Any suggestions are greatly appreciated!!

RogerB (Colorado)
Posts: 5,067

Posted:

Charlotte, I agree with you. The Declaration should encompass all lots equally. This lot should never have had different requirements. The members of the HOA can and should amend the Declaration to make this so. Also, you should prevent the daycare from being built because it is against the CC&Rs.

DonN (Michigan)
Posts: 357

Posted:

CharlotteJ1

The reasons the lot were't included in the CC&Rs don't matter at this point. My guess, based on Michigan cases, is that amendment of the CC&Rs to now include the lot will require unanimous approval of existing owners and the owner of the lot to be added. The case law may be different in your state. However, the Michigan case involved used a New Mexico case and its arguments for the conclusion that to add or substract lots requires unanimous approval. The Michigan case is Maatta v. Dead River Association. The URL is
http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/COA/20040921_C248848_34_186O.248848.OPN.COA.PDF, or try a Google search with "Maatta v. Dead".

Don Nordeen
Governance of Property Owners Associations

HaroldS (Arizona)
Posts: 906

Posted:

I agree with Don. You can bet money that if I owned that lot and you attempted to add me into your association against my wishes, you better have a good nest egg for a lawyer. Harold

CharlotteJ1
Posts: 3

Posted:

Don/Harold - unfortunately (for us), one law office said as much, that the new owner will have to agree to be included. We know she won't do this because it will obviously prevent her from building/operating a daycare (or any business). Any suggestions as to how we can start a new HOA with dues, etc, or is that something that would also require a unanimous agreement?

DJ1 (Ontario)
Posts: 798

Posted:

NOt sure if Roger or I accurately understand the situation but (see threads "developer didn't register ccrs" on our, and 33 other properties in a ~114 property subdivision.

imo, having gove thru a somewhat similar experience, you guys are sol on trying to FORCE this on the property.

Better have "DEEP POCKETS", like in our case, had the HOA tried to correct this error WITHOUT our consent the issue would have been forwarded to our TITLE INSURER and the HOA better have VERY deep pockets.

If in your case, the property in question's title did/does not list the ccr's the owner would likely win in court.

In our case there were certain 'misrepresentations' by the developer and 'fortunately' for us we had a choice to join. We have given up our right to access the waterfront clubhouse (and the costs of it that were included in the cost of our home but not broken out) but we're fine with that.

Some of the 34 joined thru (imo) coersion, or being lied to about what the document was that they signed...but then I raised the issue and all homeowners are responsible for what they sign even if they don't read or understand it. Should one of the 'mislead' (I will call them) find out the true implications and decide to fight it months or years later, the HOA will have another legal battle to deal with.

Clearly if the property you refer to was bought to build a daycare and you now want to include it, my suggestion is APPROACH THE OWNER AND MAKE AN OFFER TO BUY IT. Hopefully for the right price they will decide to locate elsewhere. Afterall, if part of their business was intended to be generated from HOA members I doubt they would get much business from you folks if there is a conflict.

RogerB (Colorado)
Posts: 5,067

Posted:

I agree with other posters IF the lot in question is not included in the Declaration of CC&Rs. My original post interpreted the post to say there were 20 lots in the association with this one lot having different restrictions from the other 19 lots.

CharlotteJ1
Posts: 3

Posted:

No, there are 20 lots, excluding this one. It was purposely left out because at the time the developer couldn't build on it (using well and septic). The developer assumed it useless and only sold the other 20 lots and created the restrictions for the 20 lots. After 30 years, he decided to sell things off that he owns (this piece of land included), and this new owner wants it to build her business on and the only way she can do it is to run county water lines up to it... either way, that's why her lot was left off and we thought we could rewrite these restrictions to incorporate this piece of property since the restrictions say we can modify all or part as long as majority rules, and believe me there's a majority that wants this piece of land to be included in the restrictions now. But it doesn't appear we really have a leg to stand on and we're positive she won't comply with a request to include herself. Thanks for the info though.

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