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Subject: CCR Waiver
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Author Messages
AaronB4
(New Mexico)

Posts:5


11/13/2017 10:22 AM  
A member of our HOA is requesting a waiver of our CCR, claiming a disability makes it necessary.

I had read somewhere that there is a way to attach a CCR waiver to a deed, so the next owner would be required to undo the change and bring the property back into compliance with the CCR. I haven't been able to find any information on how to do this. Is it possible to do this?
KerryL1
(California)

Posts:4381


11/13/2017 11:07 AM  
Welcome to the forum, Aaron. Are you on the board? First, you need to find out for certain if you must grant this owner a waiver. Waiving a CC&R article should be taken very seriously.

What is the nature of the waiver? How would you learn if the owner's claim is legitimate?
SheliaH
(Indiana)

Posts:1986


11/13/2017 12:33 PM  
What Kerry said. I can't imagine needing a CCR waived because of a disability - what is this homeowner trying to install? For example, if he/she needs a ramp for a wheelchair, wouldn't an exterior change request be enough and you process that the usual way (maybe the person is using the wrong language to describe what he/she really needs).

If it's an exterior change request and the owner provided a doctor's letter certifying the need, I would think the board would approve that. Your approval letter can then state if the home is ever sold or transferred, it must be removed.
KerryL1
(California)

Posts:4381


11/13/2017 12:56 PM  
Sheila's point is a good one. It's why it'd be helpful if we knew what this Owner wants to do.
AaronB4
(New Mexico)

Posts:5


11/13/2017 1:17 PM  
I am new to the Board, and no one has a clue how to handle this situation.

He wants to remove a brick patio wall; says the patio wall it makes it impossible to enter through his kitchen door. The CCRs specifically prohibit moving walls. It would also make his house look significantly different than all the others. He does not need a wheelchair, and has not stated the nature of his disability.

If the approval letter states that the wall must be rebuilt if the house is ever sold or transferred, how does the HOA enforce that?
PaininyourA
(South Carolina)

Posts:119


11/13/2017 2:23 PM  
He does not need a wheelchair, and has not stated the nature of his disability.



Then there is NO need for a 'reasonable accommodation'.


There is NEVER a reason to waive a Restriction.

JohnC46
(South Carolina)

Posts:7010


11/13/2017 3:01 PM  
Posted By PaininyourA on 11/13/2017 2:23 PM
He does not need a wheelchair, and has not stated the nature of his disability.



Then there is NO need for a 'reasonable accommodation'.


There is NEVER a reason to waive a Restriction.





I agree.
TimB4
(Virginia)

Posts:14860


11/13/2017 3:13 PM  
Has anyone visited the site in person to see what the issue is for themselves?


Is the CC&Rs mention of not moving walls intended for any walls or interior walls?
Note: I am picturing a half wall along the perimeter of the patio.

As for enforcement when sold, this would be part of the Associations disclosure package.
KerryL1
(California)

Posts:4381


11/13/2017 3:26 PM  
Surely your board requires some sort of confirmation from a legitimate of the man's disability whereby he must remove a wall, right, Aaron? I, as hinted above agree with Pain & JohnC that your board may not cave on covenants just because an owner wants you to.

With Tim, is this a partial wall? What is the exact wording of your CC&Rs on this topic??

I'd say you also must get your attorney's opinion. That's what we did when an Owner insisted his parking space was too narrow to accommodate his disability & requested a space in our Visitor Parking area, which opposes our CC&Rs. He brought a letter from his chiropractor and we got an opinion from our HOA attorney too.
DouglasM6
(Arizona)

Posts:438


11/13/2017 4:21 PM  
Posted By AaronB4 on 11/13/2017 1:17 PM
I am new to the Board, and no one has a clue how to handle this situation.

He wants to remove a brick patio wall; says the patio wall it makes it impossible to enter through his kitchen door. The CCRs specifically prohibit moving walls. It would also make his house look significantly different than all the others. He does not need a wheelchair, and has not stated the nature of his disability.

If the approval letter states that the wall must be rebuilt if the house is ever sold or transferred, how does the HOA enforce that?





A couple things-
1. Go talk to this guy, not alone though. Find out what's going on. Maybe the patio door has no steps and the others do? See why he needs to enter there. Maybe what he needs is a ramp. Maybe he's not quite wheelchair bound but still has trouble with steps.
2. If the variation is granted I believe you would have to file it with the county or report it to the title company. Either way, when a property is sold there is normally a form filled out by the HOA BOD stating the home is compliant and the assessments are up to date. That is your opportunity to let the new owner know the property must be brought into compliance.
GenoS
(Florida)

Posts:1631


11/13/2017 6:00 PM  
Posted By DouglasM6 on 11/13/2017 4:21 PM
Either way, when a property is sold there is normally a form filled out by the HOA BOD stating the home is compliant and the assessments are up to date. That is your opportunity to let the new owner know the property must be brought into compliance.


Is this actually true? In Florida there ia a "Disclosure Summary" that must be presented to the buyer by the seller, not the HOA, that says the home is in a community that has a mandatory HOA and assessments. The HOA has no duty to present the disclosure summary to the buyer. There are also "Estoppel Letters" that a buyer can purchase that will reveal any outstanding moneys owed to the HOA or existing violations that have been noticed to the owner (seller). But not every buyer chooses to obtain an Estoppel Letter, in which case how would they know?

So how does an HOA get a piece of paper on the table at a closing? When is the HOA's opportunity to communicate with the prospective buyer before the sale? Some owners here recollect how they were made to sign documents at their closing in which they acknowledged that they had read the governing documents and the rules & regulations of the association. As near as I can tell, those signatures would have been required by their realtors looking to cover their butts. There's certainly nothing in our governing documents or the state statutes that require such an acknowledgment at closing.

In some cases (like private sales) the HOA is not even aware that a home is being sold until the new deed is recorded with the county. It's rare but it does happen. There have been 3 or 4 sales like that in my community over the last few years.

A couple of us spoke with our HOA attorney back in the spring and asked about this specifically. The attorney said the association can make whatever agreement it wants with a homeowner, but unless it was part of the recorded documents there is no way it will be binding on a new owner. Once an owner is no longer a member of the HOA the HOA would seem to have little recourse against them.
TimB4
(Virginia)

Posts:14860


11/13/2017 8:11 PM  
Geno,

It varies by State.

Although the seller presents it, Virginia statutes mandate a disclosure package that is put together (at the request of the seller) by the Association.

The statute is very specific on what must be included. My Association actually includes more.

One item required by statute is a statement concerning violations.
Additionally, the statute holds the Association accountable for the statement. That is to say, if the HOA says that there is no violations, they can't claim that they missed a violation and hold the new owner accountable to fix it.

My understanding is that other States are requiring a statement about violations.

When I purchased my new home, I insisted on such a statement as part of the contract.

AaronB4
(New Mexico)

Posts:5


11/13/2017 9:19 PM  
I would like the Board to talk to a lawyer on this topic, but I feel it is unlikely to happen. I suggested talking to a lawyer earlier this year when a resident challenged one of the existing amendments to the Bylaws, but the rest of the Board felt it would be too expensive.

The Board is likely to approve the wall removal. I will attempt to get the requirement that it be rebuilt when he moves out added to the approval, and ask that it be added to any future disclosure statements about the property.

Posted By GenoS on 11/13/2017 6:00 PM
Posted By DouglasM6 on 11/13/2017 4:21 PM
A couple of us spoke with our HOA attorney back in the spring and asked about this specifically. The attorney said the association can make whatever agreement it wants with a homeowner, but unless it was part of the recorded documents there is no way it will be binding on a new owner. Once an owner is no longer a member of the HOA the HOA would seem to have little recourse against them.




This is my concern. I was hoping to find out how to do this.
JanetB2
(Colorado)

Posts:3642


11/13/2017 9:37 PM  
Posted By AaronB4 on 11/13/2017 10:22 AM
A member of our HOA is requesting a waiver of our CCR, claiming a disability makes it necessary.

I had read somewhere that there is a way to attach a CCR waiver to a deed, so the next owner would be required to undo the change and bring the property back into compliance with the CCR. I haven't been able to find any information on how to do this. Is it possible to do this?


Various entities can have contracts between themselves such and neighbor to neighbor or HOA to owner. For instance two neighbors can have a common roadway and have a contract filed stating each will pay X amount to maintain per year. I would recommend any such contract be done by your HOA attorney and filed with your County Records so it is attached to the property title. It could state that the current owner needs to return the property to the same condition as before the waiver granted before selling the property to another individual. That would be my recommendation vs putting the condition to change back on the a new owner, as you could get caught up in time frame issues of when returned to original condition after they purchased. If the same individual who made the change has to pay to return to original condition ... it will make them think twice about if is really needed if they need to consider cost of later fixing back in order to sell.

However, I also agree with the many others that you need to make sure this is absolutely necessary!!! When you give these type waivers and if not absolutely necessary it can open a huge can of worms. You could end up with potential battles of why could X do this while I am not allowed the same consideration. You need a very valid reason for allowing.
GenoS
(Florida)

Posts:1631


11/14/2017 12:53 AM  
Posted By TimB4 on 11/13/2017 8:11 PM
When I purchased my new home, I insisted on such a statement as part of the contract.


That would make you an astute and savvy buyer, Tim. When we bought our home here we knew we were getting into an HOA and the then-current monthly assessments, but not much else. We also received, after a fashion, copies of the governing documents. They weren't current, but the changes that had been made subsequent to the versions we received weren't germane to our decision, in hindsight.

We won't make that mistake again and we do consider ourselves very fortunate that we didn't parachute into the middle of a disaster area. If we ever purchase in another HOA we will leave no stone unturned in ferreting out every relevant detail about the association and the home/previous owner's status within it.
SheliaH
(Indiana)

Posts:1986


11/14/2017 7:30 AM  
Posted By AaronB4 on 11/13/2017 1:17 PM
I am new to the Board, and no one has a clue how to handle this situation.

He wants to remove a brick patio wall; says the patio wall it makes it impossible to enter through his kitchen door. The CCRs specifically prohibit moving walls. It would also make his house look significantly different than all the others. He does not need a wheelchair, and has not stated the nature of his disability.

If the approval letter states that the wall must be rebuilt if the house is ever sold or transferred, how does the HOA enforce that?





The patio wall makes it impossible to enter through the kitchen door??? And he's not wheelchair bound? I don't think I'd approve this at all - isn't there another way he can enter the kitchen? Frankly, I think something else is going on here. Like John, I say if he can't or won't come up with a plausible reason to knock down the wall, the answer should be no.
AaronB4
(New Mexico)

Posts:5


11/14/2017 10:17 AM  
I agree with the suggestion that he just wants the wall gone, and is using a disability as an excuse. The Board is intimidated by the suggestion of a lawsuit, and I think will allow it. I'm trying to find a way to mitigate the long term damage to the HOA.
KerryL1
(California)

Posts:4381


11/14/2017 1:15 PM  
How many others are on your board, Aaron? Are they aware that waiving a CC&R requirement might ALSO lead to a lawsuit??

As Janet warned: "When you give these type waivers and if not absolutely necessary it can open a huge can of worms. You could end up with potential battles of why could X do this while I am not allowed the same consideration."

The Board must practice due diligence, which might involve hiring an expert for an opinion. Otherwise the Board might run the risk of breach of its fiduciary obligations. In a nutshell, it must do what's best for your HOA. Worrying & fussing that this Owner MIGHT sue is not practicing due diligence.

How, Aaron, can the other directors possibly object to voting to have this owner get a note from a relevant expert saying WHY your governing documents should be ignored.

If you can't even persuade them to take that minimal step, Aaron, at least vote NO on the project to show your disagreement with such a sloppy & mindless approval.

If worse comes to worse, then yes, have the owner sign an agreement that he will pay to restore the area to its original condition before he sells.
DouglasM6
(Arizona)

Posts:438


11/15/2017 7:57 AM  
Geno-
I've only been the president for 3 years now and in that time 3 homes have been sold. Each time we were asked to fill out documents. One stating what the assessments are and whether or not there are capital assessments, and bla bla bla, and the other stating whether or not the home is compliant and current on assessments. So it must per state as said.

I don't like filling it out. There is one rule in our restrictions that has to do with tanks above ground. In order to certify the home is in compliance I would/should have to schedule an inspection of the inside of the home. That goes against my core beliefs.
JohnC46
(South Carolina)

Posts:7010


11/15/2017 10:15 AM  
Aaron

I say turn the initial request down and ask for proof his disability requires such. Make him do the work to earn it.
GenoS
(Florida)

Posts:1631


11/15/2017 3:34 PM  
Posted By DouglasM6 on 11/15/2017 7:57 AM
Geno-
I've only been the president for 3 years now and in that time 3 homes have been sold. Each time we were asked to fill out documents. One stating what the assessments are and whether or not there are capital assessments, and bla bla bla, and the other stating whether or not the home is compliant and current on assessments. So it must per state as said.


In Florida information about monetary obligations and outstanding violations on the property would be communicated in an Estoppel Letter (aka Estoppel Certificate). Prospective purchasers obtain this from the association and the buyer is entitled to rely on the information it contains for 30 days. The association may charge a reasonable fee to issue an estoppel letter (up to $250). Nothing requires a buyer to obtain such a letter. It would be foolish not to, but every once in a while a buyer does not. When requested, the association (this is usually farmed out to the management company) has 10 business days to provide it. There are provisions to legally compel an association to issue a letter, and the penalty for not meeting the deadline is that an association may not charge for the letter.
AaronB4
(New Mexico)

Posts:5


11/21/2017 9:24 PM  
At our last meeting, the Board did vote to allow it-5:2.

The Board also decided to create an Architectural Review Committee, which is required by our bykaws, but we have never had. Are there any how to guides or other resources for an Architectural Review Committee?I want to make sure the new committee doesn't make similar mistakes.
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