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Subject: CC&R Enforcement after 5 years
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MarylouM
(South Carolina)

Posts:8


03/13/2018 4:45 PM  
I purchased a home built approximately 6 years ago which was built by the developer in a SC HOA. It is a hunt box totaling 2500 square feet. The living space is 1300 sq. ft (heated) and the remaining 1200 sq. ft consists of horse stalls/barn (unheated). It is connected and under one roof line. The CC&R's state that each dwelling must be a minimum of "2500 sq. ft. of heated space excluding porches and garages". The Board now wants me to add on to the existing structure (adding another 1200 sq. ft) or to build a separate residence consisting of "2500 sq. ft. of heated space, excluding porches and garages". The CC&R's also state that once building commences, it must be completed within 18 months.

My question is, can the Board enforce this 2500 sq. ft of heated space requirement when they hadn't done so in the past? Declarant control ceased at least 6 years ago. Some owners were required to sign a document when they purchased property here stating that they would commence building within 2 years, and extensions have been granted to them. Others have had up to 9 years to add onto their hunt boxes (unheated space)? We were also told by Board members we would be grandfathered in?

Looking for guidance and your input would be greatly appreciated.

Thank you,

MM
GenoS
(Florida)

Posts:2435


03/13/2018 5:44 PM  
Posted By MarylouM on 03/13/2018 4:45 PM
We were also told by Board members we would be grandfathered in?

I doubt anyone here knows the answer to that.
PaulB12
(Virginia)

Posts:38


03/13/2018 8:10 PM  
If you purchased the year let’s say this year and it was already in violation of the covenants and was not disclosed then the HOA has violated the law. At least in my state. Hoa must put it in compliance with the governing documents at its cost. Most likely they will make up some bogus excuse that it was disclosed to get them off the hook. If you knew all along it was in violation the cost falls to you. If you have something in writing saying they will grandfather you in, then that could be a start to appeal to the board. If they are denying saying this then it goes back to the above statements.

When did you buy and did they disclose this information to you? Did your neighbors get grand fathered in?
PaulB12
(Virginia)

Posts:38


03/13/2018 8:17 PM  
Alternatively, I wonder if you could just enclose the horse area, cut a hole and make some piping from the central heating system and call it a fully 2500 sq foot home. Do you use the stable part?
JanetB2
(Colorado)

Posts:4151


03/13/2018 10:27 PM  
Welcome to the Forum!!!

You purchased your home as is and which was built before you purchased. The HOA at the time the home was constructed should have addressed any potential CCR violations at that time. I would contend the HOA absolutely cannot make you add any square footage to your home which you purchased 6+ years ago and may have violated CCR’s 6+ years ago. If you have to hire an attorney for this they will be laughing their tail ends off at the absolute stupidity of the HOA.
JanetB2
(Colorado)

Posts:4151


03/13/2018 10:34 PM  
Sorry above should state purchase of 5 years ago not the 6+ as I noted.
MarylouM
(South Carolina)

Posts:8


03/14/2018 8:36 AM  
We did not receive anything in writing from the Board notifying us that this property was not in compliance with the CC & R's. We also did not receive anything in writing "grandfathering" our property in. One other owner received notice in writing from the Board at the time of closing, and they signed an acknowledgement that they would add on to be in compliance. They added a barn apartment and then the Board came back and said it was not accessible without going outside so it didn't make it 2500 square feet in accordance with the CC & R's. They then added onto the existing structure but it was a very costly expense. Another neighbor built a small 2 bedroom hunt box and had nine years before they added on. They didn't have anything in writing requiring them to add on but they wanted to as their daughter was moving to SC to attend college and they needed the additional space.
Thank you for your response.
MarylouM
(South Carolina)

Posts:8


03/14/2018 8:37 AM  
Thank You JanetB2.
MarylouM
(South Carolina)

Posts:8


03/14/2018 8:39 AM  
PaulB12:

Thank You, that is a good option. We hardly use the barn, as the weather in SC is very mild and we have run-in sheds in the pastures for the horses.
MarylouM
(South Carolina)

Posts:8


03/14/2018 8:41 AM  
PaulB12:

What law is the HOA violating? It would be very good information to have.

Thank You,

MM
DebraR9
(Texas)

Posts:4


03/14/2018 9:53 AM  
The HOA should have told the title company you used to purchase the home that the home was in violation of the CC&Rs.
DouglasM6
(Arizona)

Posts:724


03/14/2018 10:13 AM  
You need to go through the documents you received at closing very carefully and look for a statement from the HOA saying the home is either in compliance or is not in compliance. If there is nothing in there, you need to contact the title company and ask them for it. If they do not have it, this becomes a battle between them and the HOA. If you find the document that states the property is in a state of noncompliance, then you're going to be held to task. If you find a document that states the home is in compliance, you can tell the HOA to leave you alone. You may need a letter from a attorney stating that.

We use title companies to protect us from stuff like this.
MarylouM
(South Carolina)

Posts:8


03/14/2018 11:35 AM  
There is nothing stating the property is not in compliance? I will contact the title company.
Thank You.
MarylouM
(South Carolina)

Posts:8


03/14/2018 1:00 PM  
After careful review of our closing documents, the HOA did NOT provide any information to the Title Company that our property was non-compliant with the CC&R's. There was nothing recorded/filed in the town records either, indicating non-compliance of any of the CC&R's.


DouglasK1
(Florida)

Posts:1234


03/14/2018 7:51 PM  
Posted By MarylouM on 03/14/2018 1:00 PM
After careful review of our closing documents, the HOA did NOT provide any information to the Title Company that our property was non-compliant with the CC&R's. There was nothing recorded/filed in the town records either, indicating non-compliance of any of the CC&R's.


I think the big question then is did the title company ask? If they asked for a compliance status and the HOA said it was fine, then you are set. If nobody asked the HOA it is generally not the HOA's responsibility to let the closing agent know the status.
If the title company didn't request the dues and compliance status from the association you should ask them they why they didn't, and you might have a claim against the title insurance, assuming you bought an owner's policy.

For an example, in Florida it is pretty much standard practice for the closing agents to request an "estoppel letter" requesting status on payments, and state law requires the association reply with dues information within a certain timeframe. I'm not sure if the law requires the association to provide compliance status on request, but most closing agents/title companies do ask, and if the association provides a response that there are no violations, they would not have much standing to try to enforce later. In any case, in Florida at least, it is not up to the association to monitor when properties are sold and make any notifications, it is up to title company to ask.

What you really need is a statement from the HOA that the property was ok. State laws do vary on what needs to be provided at closing, both proactively by the association, and in response to a request, I'm not sure if there are any relevant laws in your state.

Escaped former treasurer and director of a self managed association.
DouglasK1
(Florida)

Posts:1234


03/14/2018 7:53 PM  
I'll add that violations are not normally recorded with the local town/city/county so I would not expect to find anything there.

Escaped former treasurer and director of a self managed association.
JanetB2
(Colorado)

Posts:4151


03/14/2018 10:47 PM  
Marylou I would recommend contacting your Title Insurance Company and giving them any letters you may have received from the HOA regarding this issue. You purchased based on what was already constructed and which should have been addressed prior to that time by the HOA. That is potentially why you pay for Title Insurance is to protect your property with regards to what you purchased and to not be infringed upon later by any entity.
DouglasM6
(Arizona)

Posts:724


03/15/2018 12:08 PM  
Posted By JanetB2 on 03/14/2018 10:47 PM
Marylou I would recommend contacting your Title Insurance Company and giving them any letters you may have received from the HOA regarding this issue. You purchased based on what was already constructed and which should have been addressed prior to that time by the HOA. That is potentially why you pay for Title Insurance is to protect your property with regards to what you purchased and to not be infringed upon later by any entity.





^^this is great advice^^
MarylouM
(South Carolina)

Posts:8


04/13/2018 8:50 AM  
The title insurance company indicated we needed to contact the attorney that handled the closing. The title insurance company did not have and encumbrances on the property, nor did they find anything on file with the town that this property was non-compliant with the CC&R's. The HOA has not sent us any notices or letters, but we have two homeowners wanting the Board to force us to add on or build a separate house totaling 2500 square feet within an 18 month period. The CC&R's state the timeframe for completion of construction is 18 months from the commencement of the project. This building was started and completed in 2008 - 2010.

Is this a Laches issue?
KerryL1
(California)

Posts:5767


04/13/2018 9:17 AM  
Not an attorney, I'd say your case does fall under the doctrine of laches, which basically that IF the HOA board has known for five years that your home is non-compliant, they have no case now.

but because your home is attached with the same roof line, it's possible that the Board did not know that part of it was not a residence.
MarkM31
(Washington)

Posts:381


04/13/2018 10:40 AM  
When the home was built, was the development under developer control or had the HOA taken over? And was it spec or custom? If the developer was in control, then you recieved a variance to the CC&Rs automatically.
GeorgeS21
(Florida)

Posts:669


04/13/2018 1:44 PM  
Don't most deeds say somewhere that the property is covered by covenants?
DouglasK1
(Florida)

Posts:1234


04/13/2018 2:00 PM  
Posted By MarylouM on 04/13/2018 8:50 AM
The title insurance company indicated we needed to contact the attorney that handled the closing.


I'm not sure if the closing attorney would help much but I'd say you should have a consultation with an attorney to get an opinion and discuss your options. If the attorney feels that you are in the clear, having them write a letter to the board on your behalf might shut them up.

Escaped former treasurer and director of a self managed association.
MarkM31
(Washington)

Posts:381


04/13/2018 2:27 PM  
Posted By GeorgeS21 on 04/13/2018 1:44 PM
Don't most deeds say somewhere that the property is covered by covenants?




In all states I am aware of, yes.
DouglasM6
(Arizona)

Posts:724


04/13/2018 4:27 PM  
Posted By MarylouM on 04/13/2018 8:50 AM
The title insurance company indicated we needed to contact the attorney that handled the closing. The title insurance company did not have and encumbrances on the property, nor did they find anything on file with the town that this property was non-compliant with the CC&R's. The HOA has not sent us any notices or letters, but we have two homeowners wanting the Board to force us to add on or build a separate house totaling 2500 square feet within an 18 month period. The CC&R's state the timeframe for completion of construction is 18 months from the commencement of the project. This building was started and completed in 2008 - 2010.

Is this a Laches issue?




I would ask the two homeowners to mind their own business, nicely of course. You might even tell them that when you purchased the home is was completely in compliance in it's current state. Mention that you've checked with the title company, etc.

That may be enough to simmer things down. However, if the Board does contact you, I'd go straight to an attorney and let them look into this.
JohnC46
(South Carolina)

Posts:7772


04/13/2018 6:21 PM  
Marylou

If the developer built the building they gave themselves a defacto waiver which they had the authority to do so. Stop worrying until the two busybodies do something. Let them make the first legal step then you have them at your mercy.
MarkM31
(Washington)

Posts:381


04/13/2018 7:01 PM  
Posted By JohnC46 on 04/13/2018 6:21 PM
Marylou

If the developer built the building they gave themselves a defacto waiver which they had the authority to do so. Stop worrying until the two busybodies do something. Let them make the first legal step then you have them at your mercy.



I would agree, especially if the house was built while the area was under developer control
TimB4
(Virginia)

Posts:15999


04/14/2018 4:05 AM  
Laches would certainly be a good legal defense. Something to talk to your attorney about.

JanetB2
(Colorado)

Posts:4151


04/16/2018 9:31 PM  
Posted By DouglasK1 on 04/13/2018 2:00 PM
Posted By MarylouM on 04/13/2018 8:50 AM
The title insurance company indicated we needed to contact the attorney that handled the closing.


I'm not sure if the closing attorney would help much but I'd say you should have a consultation with an attorney to get an opinion and discuss your options. If the attorney feels that you are in the clear, having them write a letter to the board on your behalf might shut them up.


If you contact that attorney or another ... ask them about the Title Insurance response. Sorry ... their response peeved me because if there was nothing on file regarding the property THEY are supposed to protect your rights if you have purchased Title Insurance. THEY are supposed to inform the HOA that the property did not violate any documents on file ... especially if they checked with the HOA regarding any potential violations or HOA assessments not paid for the property.
TimB4
(Virginia)

Posts:15999


04/17/2018 6:29 PM  
Keep in mind that the Title insurance is supposed to identify any encumbrances on file.
They are not to determine if the property is or isn't in compliance with said encumbrances.

The closing attorney is also not responsible to make such a determination.

The OP never said they were not aware of covenants tied to the land.

The OP simply stated that they purchased from the developer expecting everything to be compliant. Now, after 6 years of ownership, the Association is claiming the house is not complaint and expects her to bring the house into compliance.

Personally, I believe that laches would be the best defense.
However, the OP is going to have to hire an attorney to assist her.

In my opinion, this does not fall under title insurance, nor is it a mistake made at closing.
DouglasK1
(Florida)

Posts:1234


04/18/2018 5:08 AM  
In my area, it seems pretty standard for closing agents (normally title insurers) to ask about outstanding violations in their esptoppel request (which also checks on dues status). That may not be common elsewhere, but it makes sense to me that they should check.

Escaped former treasurer and director of a self managed association.
JanetB2
(Colorado)

Posts:4151


04/18/2018 10:32 PM  
Posted By TimB4 on 04/17/2018 6:29 PM
Keep in mind that the Title insurance is supposed to identify any encumbrances on file.
They are not to determine if the property is or isn't in compliance with said encumbrances.

Hmmm ... depends on your STATE because some States require the HOA to note if there is any encumbrances against the property ... whether via pending actions or assessments.

The closing attorney is also not responsible to make such a determination. LOL ... glad I never hired a “Closing Attorney” in the past per your assessment. If they are not to determine whether or not the property is in conformance with the governing documents and has NO encumbrances attached to the property that could come back and BITE ME. Why on earth would I want to hire any such attorney???

The OP never said they were not aware of covenants tied to the land.

The OP simply stated that they purchased from the developer expecting everything to be compliant. Now, after 6 years of ownership, the Association is claiming the house is not complaint and expects her to bring the house into compliance. So ... If you went to a closing and purchased a home 6+ years old and had your “Closing Attorney” and potentially “Realtor” not see any issue ... where does then the HOA potentially have a FUTURE issue?

Personally, I believe that laches would be the best defense. I AGREE
However, the OP is going to have to hire an attorney to assist her. Agree

In my opinion, this does not fall under title insurance, nor is it a mistake made at closing. Well ... I somewhat disagree. In most states the Title Insurance checks with the County Records AND the HOA if any such HOA exists and if any encumbrances with regards any property. An example in the past on this site was an owner who purchased a new home which had a larger driveway/garage pad that the HOA wanted the NEW owner to remove (claiming extra driveway space violated CCR’s. The HOA went after them within a couple of months trying to make them pay to remove. I told them to contact their Title Insurance. The Title Insurance per the poster’s response was they immediately provided attorney to pursue the issue and protect the owner’s property rights regarding their property at time of purchase as “disclosed” by the HOA and the HOA ended up backing down. Again ... if the HOA has given any OK at any point in time on the sale of the property ... they need to suck it up!!!



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