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Subject: Height restriction enforcement
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DiannaC3
(Oklahoma)

Posts:4


07/15/2019 8:38 AM  
Any advise anyone can give me would be greatly appreciated! We bought a Lake home about 6 months ago. We are lake view not waterfront. We do have an amazing view of the lake. The HOA clearly states the height restriction of the waterfront homes. Fast forward 6 months. A builder has built 2 homes on the waterfront that are in violation of the height restriction. Unfortunately one of them is now restricting my lake view. What is my best course of action? Another thing I need to add. The HOA does not yet have a true board. It is controlled by the developer of this gated community. He is just passing the buck that we have to deal with the builder on this issue. I so wish I would have looked more into HOA’s before we purchased. Mainly this HOA. The “developer” who is in control of the HOA actually built two homes in violation of this rule but they are located in front of empty lots so no one complained when they were built. However, the height restriction is clearly given in the HOA rules I signed and was given.
SheliaH
(Indiana)

Posts:2621


07/15/2019 9:58 AM  
Your best bet would be to talk to an attorney to see if you can take some sort of action against the builder. However, the developer is still in charge until it turns the community over to the homeowners and that's when you get your board of directors.

The cynic in me suspects money won out (as it usually does) when that house was built. At this point, I doubt the other house will be torn down, but maybe you can get some money back from your purchase.
AugustinD


Posts:1886


07/15/2019 11:21 AM  
Posted By DiannaC3 on 07/15/2019 8:38 AM
We bought a Lake home about 6 months ago. We are lake view not waterfront. We do have an amazing view of the lake. The HOA clearly states the height restriction of the waterfront homes. [... the height restriction is clearly given in the HOA rules I signed and was given.]


Is this actually a covenant as listed in the HOA's Declaration of Covenants? If possible, please quote this covenant exactly.

Fast forward 6 months. A builder has built 2 homes on the waterfront that are in violation of the height restriction. Unfortunately one of them is now restricting my lake view. What is my best course of action? ... The HOA does not yet have a true board. It is controlled by the developer of this gated community.


I have seen this before in case law. For one thing, it is a type of bait and switch. The courts hold the developer's feet to the fire when a major covenant (if this is a covenant) that many relied upon when buying into a community is suddenly thrown out by the declarant. It boils down to a violation of the contract between developer and homeowner.

Oklahoma Statute Section 60-508 may be relevant:
"Each unit owner shall comply strictly with the bylaws and with the administrative rules and regulations adopted pursuant thereto, as either of the same may be lawfully amended from time to time, and with the covenants, conditions and restrictions set forth in the declaration or in the deed to his unit. Failure to comply with any of the same shall be grounds for an action to recover sums due, for damages or injunctive relief or both, maintainable by the manager or board of managers on behalf of the council of unit owners or, in a proper case, by an aggrieved unit owner."

See http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=86013

First, immediately examine your Declaration of Covenants and any rules the Declarant has published, and find the procedure for filing a complaint. Second, draft the complaint. It should be short and to the point. Third, send the complaint certified mail, return receipt requested to the declarant/developr. Carbon copy the builder.

--- Start Sample Complaint ---
Dear Developer/Declarant for Whitecaps HOA,

After reviewing Whitecaps HOA's Declaration of Covenants, my spouse and I purchased a home from you with a beautiful lake view. As you are aware, the covenants include a height restriction so as to preserve the views of the lake. The view and the covenants protecting same were a huge factor in our decision to purchase a home in Whitecaps HOA. Recently a builder on Lots ___ and ___ constructed homes whose height exceeds that allowed in the covenants. Would you please enforce the covenants and correct this situation? Please let us know within ten business days that you have done so.

Thank you,

___ and ____
Lot #____
BuildEmQuick HOA
--- End Sample Complaint ---

Report back here after ten days have passed.


AugustinD


Posts:1886


07/15/2019 11:23 AM  
Also, while waiting for the developer's response, start shopping for a real estate attorney. Go to any meeting with an attorney with a copy of the covenants; the lot numbers involved; and a short statement of the violation you claim exists. I expect the attorney's review of the Declaration and law, and his or her sending a follow-up letter to the developer will cost around $5000.
JohnC46
(South Carolina)

Posts:8550


07/15/2019 11:45 AM  
Dianna

Do you have the time and money to get the offending house rebuild to your satisfaction or removed entirely? Ball back in your court.

Unfortunately most declarants/developers have the authority to grant waivers to the Covenants.
AugustinD


Posts:1886


07/15/2019 11:47 AM  
Oklahoma Statute Section 60-510 also appears to be powerful and in the OP's favor:
"No unit owner shall do any work which would jeopardize the soundness or safety of the property or impair any easement or hereditament without in every such case the unanimous consent of all the other unit owners affected being first obtained."
See http://www.oscn.net/applications/oscn/deliverdocument.asp?id=86015&hits=74+23+

A lake view and/or height restriction is a "negative easement." For more information, google on the phrase, "negative easement."

DiannaC3
(Oklahoma)

Posts:4


07/15/2019 12:34 PM  
First of all, thank you all so much for your comments. Very helpful. Love the sample
letter! I have checked the court records and can see where the covenants were filed. It clearly states that homes on that level cannot exceed the height of Lot # ? (Don’t want to put exact information as to protect innocent owners). You can look at them and clearly tell they exceed that height but we have even had them surveyed as to back up our point. Last week when they were given this information the builder was communicating with us. Now both he and the developer have stopped returning calls. I think I will take the advise of writing a letter, attaching documentation and sending it certified mail. We loved the idea of gated community and rules that people must follow for the benefit of everyone. Now we are regretting our decision. I think the above poster was correct. He’s had a builder in here buying his lots so he’s just letting him do whatever he wants.

Thank you again for your help and advise.
AugustinD


Posts:1886


07/15/2019 12:50 PM  
Dianna, can you confirm that the HOA's Declaration say it is subject to the Oklahoma "Unit Ownership Estate Act"? If so, then by O. S. 60-502, you are on strong ground.

Posted By DiannaC3 on 07/15/2019 12:34 PM
We loved the idea of gated community and rules that people must follow for the benefit of everyone.


The above is exactly the basis (in layperson's wording) for courts ruling against developers who suddenly change major covenants.

On further study, I think you should send two letters: One asking the HOA-Developer to enforce the covenants (cc the builder), and a second to the builder to reduce the height of its buildings(cc the HOA-Developer). If it's clear your HOA is subject to the Oklahoma Unit Ownership Estate Act, feel free to cite Oklahoma Statute Section 60-510. I suggest staying humble and factual. Because the facts speak loudly all by themselves. Send certified mail, return receipt requested. Give each ten days to respond.
DiannaC3
(Oklahoma)

Posts:4


07/15/2019 5:23 PM  
I looked it up it says Okla. Stat. Tit. 60 851 et seq.

Any ideas?
AugustinD


Posts:1886


07/15/2019 8:02 PM  
Posted By DiannaC3 on 07/15/2019 5:23 PM
I looked it up it says Okla. Stat. Tit. 60 851 et seq.


Then the statutes I named earlier do not apply. Instead Oklahoma Statute 60-856 does:

"Any person owning property in a real estate development shall be entitled to bring action against any other person owning property in such development to enforce any of the restrictions or covenants of the real estate development which are specified by the covenants or restrictions. In any action to enforce any restriction or covenant pursuant to the provisions of this section, the prevailing party shall be entitled to recover reasonable attorney's fees to be fixed by the court, which shall be taxed as costs in the action."
See http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=86150 .

You want to read 60-851 through 60-858 linked here, http://www.oscn.net/applications/oscn/Index.asp?ftdb=STOKST60&level=1, and see if any of the other sections apply.

Send the letters. Then see a real estate attorney.
DiannaC3
(Oklahoma)

Posts:4


07/15/2019 8:30 PM  
I can’t thank you enough for the help! Sending letters tomorrow!
ND
(PA)

Posts:330


07/16/2019 5:38 AM  
Perhaps instead of setting wheels in motion (maybe in the slightly wrong direction) by sending letters first, then seeing an attorney . . . maybe you see an attorney first and decide if sending letters from you is the best first step. Something to consider.

While I don't think coming at the developer/builder out of the gate with letters from your attorney is the best start to trying to work this out, I do think some slightly more informed input from an attorney familiar with HOA law first would help ensure you're progressing smartly. Maybe a couple hours of consult with an attorney would be a good investment . . . perhaps even writing your letters first and have them reviewed.
AugustinD


Posts:1886


07/16/2019 2:28 PM  
Some case law regarding developers who amend the covenants unreasonably, to the detriment of homeowners who bought before the amendment:

-- Robert S. Moore v. Morris Kendall Meeginson, etc.
Alabama, 416 So. 2d 993 (1982)
The trial court found that [the developer]'s exercise of his right to cancel or modify the restrictive covenants "must be reasonable, with due regard for the property rights and investments of the persons who relied upon the residential covenants which were in full force at the time of their purchase." The appeals court affirmed the trial court's decision.
https://law.justia.com/cases/alabama/supreme-court/1982/416-so-2d-993-1.html

-- Wright v. Cypress Shores Development Co., Inc.
Alabama, 413 So. 2d 1115 (1982)
"Amendment or cancellation of the restrictions so as to permit the construction of a convenience store on Lot 46 was, we hold, an unreasonable exercise of the [developer]'s authority and highly inconsistent with the general scheme or plan of development upon which plaintiffs relied when purchasing their lots, and was therefore null and void." The appeals court ruled against the developer and for the homeowners.
See https://law.justia.com/cases/alabama/supreme-court/1982/413-so-2d-1115-1.html

-- Flamingo Ranch Estates, Inc. v. Sunshine Ranches Homeowners, Inc.
Florida, 303 So.2d 665 (Fla. Dist. Ct. App. 1974)
"Appellant's predecessor, seeking to develop a tract of land, had placed of record certain Declaration of Restrictions regulating and restricting the use of and improvements upon the individual lots to be sold in the development in order to insure "the development of the lands as a residential area of high standards". Sales of the individual lots were promoted and procured in reliance upon this feature. ... We hold, therefore, that the clause in the Declaration of Restrictions, which reserves to the [developer] "the right to alter, amend, repeal or modify these restrictions at any time in its sole discretion" is a valid clause so long as it is exercised in a reasonable manner as not to destroy the general scheme or plan of development."
See https://www.ravellaw.com/opinions/83d49394a05d64f1313bcb760f78f19e

-- Appel v. Presley Companies
New Mexico, 806 P.2d 1054 (1991)
"... [C]ourts have determined that provisions allowing amendment of subdivision restrictions are subject to a requirement of reasonableness. As stated in 7 G. Thompson, Real Property, § 3171 (repl.1962), 'A court of equity will not enforce restrictions where there are circumstances that render their enforcement inequitable.' "
See https://law.justia.com/cases/new-mexico/supreme-court/1991/18798-0.html

-- Rossman v. Seasons at Tiara Rado Assoc.
Colorado, 943 P.2d 34 (1996)
"... [A] [developer] reasonably exercises the right to amend if the grantor does not destroy the general scheme or plan of development for the property."
https://law.justia.com/cases/colorado/court-of-appeals/1996/95ca2099-0.html

Ross Wilkinson and Cindy Wilkinson [et al.] v. Chiwawa Communities Association
Washington, 2014 Supreme Court of Washington
"When covenants reserve power to less than all of the affected homeowners to adopt additional restrictions, then less than all may adopt restrictions provided this power is exercised in a reasonable manner and is consistent with the general plan of development. E.g., Shafer v. Bd. ofTrs. of Sandy Hook Yacht Club Estates, Inc., 76 Wn. App. 267, 273- 74, 883 P.2d 1387 (1994)). The reason for this rule is that
'n a sense, there is an inherent inconsistency between an elaborate set of
restrictive covenants designed to provide for a general scheme or plan of
development (generally considered to be for the benefit of the respective
grantees), and a clause therein whereby the grantor reserves to itself the
power at any time in its sole discretion to change or even arbitrarily
abandon any such general scheme or plan of development (a power which
is solely for the benefit of the grantor).'
Flamingo Ranch Estates, Inc. v. Sunshine Ranches Homeowners, Inc., 303 So. 2d 665, 666 (Fla. App. 197 4 ), quoted in Lakemoor Cmty. Club, Inc. v. Swanson, 24 Wn. App. 10, 15, 600 P.2d 1022 (1979); see also Shafer, 76 Wn. App. at 273."
See https://law.justia.com/cases/washington/court-of-appeals-division-iii/2011/289117-unp-doc.html

Queen's Grant II Horizontal Property Regime v. Greenwood Development
South Carolina, 2006 Court of Appeals
"Moreover, a developer may generally reserve to himself the right to amend restrictive covenants in his sole discretion, and may do so without the consent of the grantee, so long as he exercises that right in a reasonable manner."
See https://law.justia.com/cases/south-carolina/court-of-appeals/2006/4101-20.html

The case law the various state appeals courts cited crosses state lines a lot.

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