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Subject: CCR Loopholes
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Author Messages
RichA3
(Arizona)

Posts:7


04/08/2018 8:54 AM  
For what it is worth I would like to share a recent experience regarding a new structure on an owners adjacent vacant lot. It is called a "garage" but it is 2-stories tall, dwarfing the owners house & everything else nearby in the neighborhood. Homes in the area are one-story, most with pitched roofs. Not only is it tall but it has 3 large bays that would easily accommodate the largest RVs I have seen. It is, though, of sound construction typical of the neighborhood. This 'garage" is something that the Flying J Truck Stop would like to have to service semis...something that Greyhound would like to have as a terminal in a small town. Naturally neighbors are upset. So much so that they appeared in mass to protest at a meeting of the Sun City (AZ) Homeowners Association (SCHOA). Their read (& mine) of the SCHOA CCRS indicated a CCR violation. The SCHOA disagreed & said that technically there was no violation, that they knew for years there was conflicting CCR verbiage that could cause problems...but to clarify all association CCRS would cost a half-million dollars. This "garage" clearly did not meet the intent of the CCRs. Incredibly, the SCHOA admitted that they are not in the loop with the county who approved the construction permit for the garage. Naturally I have lost confidence & trust in the SCHOA. They have been around for half a century & yet let something like this slip through the crack.
JohnC46
(South Carolina)

Posts:7420


04/08/2018 9:07 AM  
Rich

If so upset then band together with neighbors and take legal action against a covenant violation which as a fellow owner, you have the right to do so.
KerryL1
(California)

Posts:5090


04/08/2018 9:36 AM  
I believe John is right. There should be an Enforcement Clause in your CC&Rs. any owner or group of owners may band together and take legal action to have this violation removed--yes removed.

would you mind, Rich, sharing the CC&R language with us that prohibits this type of structure? And the language with which it seems to conflict?
MarkM31
(Washington)

Posts:332


04/08/2018 10:34 AM  
Posted By RichA3 on 04/08/2018 8:54 AM
.........Their read (& mine) of the SCHOA CCRS indicated a CCR violation. The SCHOA disagreed & said that technically there was no violation.




Realize that now the structure was allowed and built, that anything you do is going to cost the HOA money. Even if you prevail and force the demolition of the structure, the fact that the HOA has allowed it (in real or de facto terms) would probably lead to the HOA being forced to take the side of the garage's owners. If the defendants lose, the owners could (would and should) claim determental reliance. So the cost of both plaintiff and defendants attorneys fee's (or at least the majority of the defendants costs) would be on the HOA, as would the costs to build and demolish the building.

In short, your screwed.
MarkM31
(Washington)

Posts:332


04/08/2018 10:57 AM  
Posted By RichA3 on 04/08/2018 8:54 AM
Incredibly, the SCHOA admitted that they are not in the loop with the county who approved the construction permit for the garage..




There is no loop with the county, nor should there be one. The county can legally only enforce building and zoning laws, CC&Rs are a civil matter.
RichA3
(Arizona)

Posts:7


04/08/2018 10:59 AM  
Thanks for the prompt feedback you all.
I do believe the neighbors are screwed. I am fortunately not in their neighborhood. I live across 99th Ave in an area with patio homes that have flat roofs. Such a "garage" here would be even more out of place. As a small association of 17 owners I do not see why we couldn't at least clarify our CCRs/By-laws to prohibit such a structure here. But if you can't get in front of something like this you are screwed anyway, it sounds like, if the building permit is issued by the county. How do other associations get in the loop before something like this is constructed? I can't build a shed or put one on my property w/o association approval. That this could technically be built is astonishing!
MarkM31
(Washington)

Posts:332


04/08/2018 11:08 AM  
You're not screwed because the the county issued the permit, your screwed because your CC&Rs allow the structure. The HOA later confirmed this in front of a bunch of witnesses. The county will basically issue a permit for any structure legally allowed. It is incumbant on the HOA to ensure that any structure being built conforms to their ( the HOA's) documents. This is best done before construction starts by requiring submittals to the HOA. And then is construction starts without approval, or deviates from what is allowed, the HOA can get a civil cease and desist order.
RichA3
(Arizona)

Posts:7


04/08/2018 11:22 AM  
Kerry, thanks for asking for the specifics involved in this dispute. The neighbors case was based on violations of both of these paragraphs in the covenants...

Sun City (AZ) HOA Covenants
5. Setback Requirements
 The front line of any building erected upon any lot shall not be closer than twenty (20) feet to the front lot line, the side walls of any building shall not be closer than five (5) feet to the side lot line, and not closer than ten (10) feet to the side lot if such lot line is adjacent to a street, except that any garage or carport detached from the dwelling may be erected on either side or back lot line if such garage or carport is located entirely within the rear one-half of said lot.  The carport and store room attached to the walls of the dwelling may be placed not closer than five (5) feet to an interior side lot line and not closer than ten (10) feet to a side lot line adjacent to a street.  In the event an Owner acquires all or a portion of any adjoining lot or lots, the foregoing measurements shall be made from such Owner’s side property lines rather than from the side lot lines indicated on said recorded map or plat.  No portion of the buildings erected on lots bordering a golf course shall be placed closer than twenty five (25) feet to the boundary line of said golf course. Board Resolutions (5-25-2011) Paragraph 5 – For the purpose of clarifying the term "garage or carport detached from the dwelling." A detached garage or carport must have a concrete driveway going from the structure to the street. A detached garage or carport must be a standard size; it must be large enough to park at least one (1) standard size, licensed, passenger vehicle. A passenger vehicle includes a car or light truck, but does not include a golf cart, motor home, mobile home, or RV. A garage or carport must be designed and painted or finished to match the residence and the roof line of the garage or carport may not exceed the roof line of the residence.
10. Detached or Temporary Structures
 No detached or prefabricated building or structure of any nature whatsoever, permanent or temporary, shall be moved or placed upon or assembled or otherwise maintained on any lot.  No machinery or equipment of any kind shall be placed, operated or maintained upon or adjacent to any lot except that which is usual and customary during construction or remodeling and shall be removed immediately upon completion. Board Resolutions (5-25-2011) Paragraph 10 – For the purpose of clarifying the term "No detached or prefabricated building or structure:" No sheds Of storage structures shall be allowed unless they are attached to the residence as an addition. Such structures require a Maricopa County Building Permit, and must be constructed in accordance with the standards in Paragraph 4 of the - Declaration. This restriction, therefore, prohibits all plastic, fiberglass, or metal storage sheds and cabinets. Board Resolutions (5-25-2011) Paragraph 10 – For the purpose of clarifying the restriction regarding "machinery or equipment" kept on lots during construction: Dumpsters used for repairs/renovations shall be permitted for a period not to exceed ninety (90) days in any twelve (I 2) month period and must not have any garbage, refuse, or debris overflowing in the container. Any extension of this initial time frame must be approved by the Compliance Committee at SCHOA.
MelissaP1
(Alabama)

Posts:7170


04/08/2018 11:42 AM  
Reading your post made me laugh... I am going through a similar thing but with NO HOA. Plus the neighbor lives in the county not the city. Understood he had plans to build a garage when he moved in. Plus knew he was a "shadetree" mechanic. However, what did not expect? The 2 story greyhound bus station that is even higher than my own 2 story home! It has 3 bays and what looks like living space upstairs. It's "T" on the back of his 1 story 1200 square foot existing house. The garage looks like 2400 square feet. The top floor matches his existing home.

It is frustrating because there is nothing any of us neighbors can do about it. He's been working on it for months now and still not finished. Not sure what will happen if I ever try to sell this house. I am in the city. Which our neighborhood is broken up into county/city lots. We have the option of changing to city. Which I highly doubt he will ever adopt to moving to the city. Being the only benefit is being in one of the best school systems. He plans on having no kids.

I don't think the City would have approved the plans for this garage. So all I can do is explain to potential buyers the set up of the county/city arrangements. How that works and the benefit of being in the city. Maybe that is the way one will have to do it here. The good options versus the eye sore.

Former HOA President
ShirleyC
(California)

Posts:102


04/08/2018 1:52 PM  
talk to an attorney that knows HOA law
TimB4
(Virginia)

Posts:15577


04/08/2018 2:40 PM  
The membership can certainly change the CC&Rs.
Why that would cost 500K is beyond me.

Language is proposed and voted on at the regular meeting.
If adopted, the amendment is signed and filed.
RichA3
(Arizona)

Posts:7


04/08/2018 3:28 PM  
The 500k makes no sense to me either. I think they got that if they had to change all individual CCRs in every single little association in Sun City, AZ. Each of us could do that ourselves if the SCHOA gave us the new wording. Also why couldn't the SCHOA just change the wording in the SC HOA Declaration of Covenants. I am not even close to being an arm-chair legal eagle, but I believe those covenants would be limiting as individual association CCRs could not be less restrictive.
DouglasK1
(Florida)

Posts:1055


04/08/2018 5:17 PM  
The CCRs should specify what it takes to amend them. It is usually a vote of a certain percentage of owners, 2/3 or 3/4 are common but yours could vary.

The last time we changed ours, we spent about $1,000 on a lawyer to draft the changes we requested. Since our docs require 2/3 vote, and we would never get 2/3 of owners to a meeting, we did ours by written ballot, with a fair bit of knocking on doors to get the people who ignored it engaged in the process.
DouglasK1
(Florida)

Posts:1055


04/08/2018 5:23 PM  
I agree with Mark that the county typically have no bearing in this process. The county will issue a permit for anything that meets their laws and rules. They don't know or care about the CCRs.

Most CCRs that have restrictions specify that owners must request prior approval for changes/additions/etc. If the board or ARC gave that approval, I think there would be little chance of getting it rescinded. If the owners didn't ask, or the board denied, then somebody might have a possibly winnable court case. Unfortunately, this could cost 10's of thousands or even more to fight in the courts, with no assurance of winning.
GenoS
(Florida)

Posts:1972


04/09/2018 4:12 AM  
Posted By DouglasK1 on 04/08/2018 5:17 PM
The CCRs should specify what it takes to amend them. It is usually a vote of a certain percentage of owners, 2/3 or 3/4 are common but yours could vary.

The last time we changed ours, we spent about $1,000 on a lawyer to draft the changes we requested. Since our docs require 2/3 vote, and we would never get 2/3 of owners to a meeting, we did ours by written ballot, with a fair bit of knocking on doors to get the people who ignored it engaged in the process.

I want your HOA's lawyer, Douglas. We replaced our CC&R's nuisance restriction - 1 short ambiguous paragraph - with 3 clear and specific paragraphs - and our attorneys charged us for 12 hours of work at 225 per. Needless to say, we're looking for a new attorney.
LetA
(Nevada)

Posts:409


04/09/2018 6:26 AM  
I think you're making a big deal out of nothing. If your CC&R's allow for covered awning RV ports, then I think a garage for an RV is more appealing
than a awning covered RV port.
DouglasK1
(Florida)

Posts:1055


04/09/2018 7:21 PM  
Posted By GenoS on 04/09/2018 4:12 AM

I want your HOA's lawyer, Douglas. We replaced our CC&R's nuisance restriction - 1 short ambiguous paragraph - with 3 clear and specific paragraphs - and our attorneys charged us for 12 hours of work at 225 per. Needless to say, we're looking for a new attorney.


We had several CCR and bylaw changes, ours charged $250/hr for four hours, including an hour long meeting with the board. We did ask for an estimate in advance rather than leaving it open ended. If anybody is looking for an HOA attorney in Orlando, I'd be glad to email details.
BenA2
(Texas)

Posts:283


04/09/2018 8:37 PM  
Is it a "loophole" or is it that the CC&Rs don't actually prohibit it? It seems from your statements that there are people on both sides who disagree on that question, which leads me to believe the wording is unclear. If the CC&Rs are unclear any benefit of the doubt should go to the homeowner, as it is his or her property. That is my opinion but it is also the law in some states.

We had a similar situation and I was surprised at how many people thought that we could deny approval without a valid cause, simply because the CC&Rs stated the owner must get approval. You cannot deny an application unless there is a violation of the CC&Rs, unless the CC&Rs specifically give the board or architectural committee discretion on the issue.

If your board or architectural committee believed that the garage did not violate the CC&Rs, then they were right to approve it. HOAs that do otherwise often end up on the losing end of a lawsuit which will be money out of YOUR pocket.



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