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Thursday, October 18, 2018
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Subject: “Grandfathered variance”
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ShellyZ1
(Colorado)

Posts:2


06/13/2018 3:31 PM  
Hi all, I hope you can help me. A residential property in an acreage subdivision has been a specific use for 34 + years. Sometime during that 34 years an HOA was formed and the use continued despite being a violation of the covenants that were implemented when the HOA was formed. The owner became a member of the association and pays dues. If the property is now sold and the new owner wants to continue the current use, even though it’s a violation of the covenants, will the grandfathered variance still be applicable or do the covenants supercede the use due to the change of ownership? If so, any suggestions to get around this? The owner is ill and the adult son wants to buy the house and continue the use, which is income producing for both father and son
MelissaP1
(Alabama)

Posts:7664


06/13/2018 3:52 PM  
Is this some kind of business? It's a bit unclear but assume it's along the lines of a business. If so, is there a sign outside saying what it is? Keep in mind that HOA's are not "anti-home business". They are just not for those who "Put a shingle up" advertising it. Hence why many HOA's have rules such as no businesses or no signs other than for sale/rent.

Now if this has not been causing an issue but for the fact it's a rule violation, then the situation will most likely keep going on. If this is an issue that's been festering for 34 years, then under the new owner they may get notification of the violation.

It may be a situation where you all can work something out. Like making sure there are no advertising signs displayed. That traffic is only during business hours of 7 am to 6 pm. It must be shuttered up as to not cause a nuisance. No reason one can't modify the terms if it makes things a better compromise.

Former HOA President
AugustinD


Posts:1126


06/13/2018 6:21 PM  
What documentation does the father have showing that this variance is "grandfathered"?
ShellyZ1
(Colorado)

Posts:2


06/13/2018 7:06 PM  
It is a business. There is a large outbuilding in the property that is used as a warehouse. No signs or customer traffic. Deliveries come one time a week during business hours. One employee comes for the work truck each day and leaves his vehicle until quitting time. It’s very unobtrusive, really.
What we are looking to learn is whether the change of ownership can trigger action by the HOA if the use doesn’t change in anyway.
JanetB2
(Colorado)

Posts:4151


06/13/2018 9:11 PM  
Posted By ShellyZ1 on 06/13/2018 3:31 PM
Hi all, I hope you can help me. A residential property in an acreage subdivision has been a specific use for 34 + years. Sometime during that 34 years an HOA was formed and the use continued despite being a violation of the covenants that were implemented when the HOA was formed. The owner became a member of the association and pays dues. If the property is now sold and the new owner wants to continue the current use, even though it’s a violation of the covenants, will the grandfathered variance still be applicable or do the covenants supercede the use due to the change of ownership? If so, any suggestions to get around this? The owner is ill and the adult son wants to buy the house and continue the use, which is income producing for both father and son



My question per the above bold items would be what HOA documents are actually attached the the property via your County Records??? If an HOA was formed AFTER the owner purchased ... is there documentation that the Owner signed agreeing to be part of the HOA ... AND ... properly filed with the County Records? If not ... you are pretty much SOL. If is ... potentially the NEW owner is subject to the CCR’s which will be included in their purchase documents and which they will sign to agree to abide and follow.

LOL ... if I was the son I would leave in my father’s name and utilize as has been previously used.
DouglasK1
(Florida)

Posts:1233


06/14/2018 11:06 AM  
I agree with Janet that CCRs can't generally be imposed on a landowner without their permission if they didn't already exist when the property was acquired.

Unless there was something in the governing documents that said variances expire on ownership transfer, I would think they would continue. Is this actually documented as a variance, or is it essentially just a violation that has been ignored for years? In the latter case, many states have statutes of limitations that disallow enforcing violations that have existed for a certain amount of time. The legal doctrine of laches might also apply.

Escaped former treasurer and director of a self managed association.
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