Get 2 months of free community web site hosting from Community123.com!
Sunday, December 08, 2019
Get 2 months of free community web site hosting from Community123.com!
Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Subject: Grandfather verses new contruction
Prev Next
Please login to post a reply (click Member Login on the menu).
Author Messages
RussH5
(Ohio)

Posts:2


08/06/2019 9:24 AM  
For over 8 years the HOA was controlled by our developer. January of 2019 the HOA was turned over to the residents and a board was formed. Immediately the topic of non-compliant issues arose within the board and how to handle them.
A board decision was made to send out a letter to the residents stating that if they had anything that was not compliant that they should submit it with proof that it was approved by the developer. We had an over whelming response. People sent us everything, even if it met the rules. Very well received.
In that letter we also stated that any project submitted after June 1st of 2019 will be reviewed by the architectural committee and the board and will need to follow the CCR's as set forth.
Jump ahead to August 1st, we have a resident that has requested an outdoor shed that is larger than what is stated in our CCR’s. He is stating that he should be allowed to set this building on his property because of non-compliant issues that were grandfathered in. He purchased closed on his house in January, he also received a copy of the CCR’s when he purchased. He openly admitted he did not read the CCR’s but feels it doesn’t matter what they say as he needs this space.
His lot also has the stipulation that they can choose to build a full-on structural garage, but he has stated he does not want to spend the extra amount to build something since this pre-made and delivered shed is cheaper.
Up to this point since the board was elected, we have maintained the CCR’s and roughly 6 sheds have been approved without incident, they have all been to proper size and color matched to the house.
We have tried to communicate with him and offer a resolution that would require some work on his part to gather signatures for a change in the rules, but he flat stated to us that he wants a yes or no answer and it appears his direction is to head to court.
Keep in mind we the board are open to change the CCR’s, but it requires 2/3rds of the owners to provide a signature of approval. We are open to exploring this with our residents, but it will need to be discussed and some stipulations be put in place as to a max size. It maybe based on a percent of lot size. That will need to be determined.
Does he have any legal way to force us to allow this shed?
Do we just say no the CCR’s stand?
Looking for advice and best possible way to resolve this quietly.

Thanks
SheliaH
(Indiana)

Posts:2763


08/06/2019 10:01 AM  
If he didn't read the rules when he got the documents, that's his problem - the fact he didn't do this while he was the board PRESIDENT is even worse. I say deny the request - if anyone was going to be grandfathered in, the board would have already done that.

I know you'd prefer to settle this quietly, but caving in isn't an answer either. If he really wants this shed, he'll have to persuade enough of his fellow neighbors to push for a vote to amend that portion of the CCRs. That's how ADULTS resolve their problem, not jump up and down and throw temper tantrums like a 5-year-old.

In the meantime, don't be afraid of noise - from time to time, you will come across homeowners who think the rules apply to everyone but them. The key is to apply the rules fairly and consistently, and document, document, document. If he threatens legal action, wait for the paperwork, as Melissa would say and then let your attorney handle it. Ultimately, a judge will decide anyway.
JohnC46
(South Carolina)

Posts:8877


08/06/2019 11:45 AM  
Russ

Do not let him scare you which it seems at this time, he has.

Stick to your guns.
AugustinD


Posts:2049


08/06/2019 2:14 PM  
Posted By RussH5 on 08/06/2019 9:24 AM
For over 8 years the HOA was controlled by our developer. January of 2019 the HOA was turned over to the residents and a board was formed. Immediately the topic of non-compliant issues arose within the board and how to handle them.
...
Jump ahead to August 1st, we have a resident that has requested an outdoor shed that is larger than what is stated in our CCR’s.


Are there other sheds on members' lots that are larger than what the CC&Rs allow?

If yes, then the member may have a legal leg on which to stand, via an 'abandonment of covenants' claim.

If not, then I think the HOA should continue to stand firm and deny him the unlawful shed.
RussH5
(Ohio)

Posts:2


08/06/2019 2:46 PM  
Yes there are a few that are outside of the limits. Those sheds were put in place under the control of the developer which chose not to in force the rules as good as they should have. Those are the ones that were grandfathered in with proof of approval from the developer and builders. Since the residents have taken over the rules have been enforced.
If we allow this, then where does it stop? Why have an HOA?
We have written proof that he received the CCRs and specifically asked about garages before he signed the contract with the home builder. Then we have proof he signed a document stating he received it at time of closing.
AugustinD


Posts:2049


08/06/2019 3:11 PM  
Posted By RussH5 on 08/06/2019 2:46 PM
Yes there are a few that are outside of the limits. Those sheds were put in place under the control of the developer which chose not to in force the rules as good as they should have. Those are the ones that were grandfathered in with proof of approval from the developer and builders.


This helps the member's case but if forced to bet, I'd say the courts will favor the current board's position of not allowing she shed.

What also might help the member's case is if the lots are large and the sheds are not all that visible. Under such circumstances, a court might say the prohibition on a shed's size is not fair and reasonable.

If I were the Board, I'd stand my ground (for the reasons you give), then take it day by day, anticipating the possibility of an expensive court battle.

JohnC46
(South Carolina)

Posts:8877


08/06/2019 3:44 PM  
Posted By AugustinD on 08/06/2019 3:11 PM
Posted By RussH5 on 08/06/2019 2:46 PM
Yes there are a few that are outside of the limits. Those sheds were put in place under the control of the developer which chose not to in force the rules as good as they should have. Those are the ones that were grandfathered in with proof of approval from the developer and builders.


This helps the member's case but if forced to bet, I'd say the courts will favor the current board's position of not allowing she shed.

What also might help the member's case is if the lots are large and the sheds are not all that visible. Under such circumstances, a court might say the prohibition on a shed's size is not fair and reasonable.

If I were the Board, I'd stand my ground (for the reasons you give), then take it day by day, anticipating the possibility of an expensive court battle.





I believe those that out of the gate threaten legal action, are the ones who never follow through. My reply when threatened is: See you in court.
KerryL1
(California)

Posts:6712


08/06/2019 4:08 PM  
With most others, I don't see how this former prez can bully your board at all. You might have a private meeting with him and explain that you'll enforce the covenants. Since it didn't get built during developer control, there can be no grandfathering.

With JohnC, I don't think he'll follow through and go to court, and I think he has no case
AugustinD


Posts:2049


08/06/2019 4:30 PM  
Posted By JohnC46 on 08/06/2019 3:44 PM
I believe those that out of the gate threaten legal action, are the ones who never follow through. My reply when threatened is: See you in court.
Of course, and just sayin': A long exchange of letters between the HOA attorney and the member's attorney will happen before this ever goes to court.

Posted By RussH5 on 08/06/2019 9:24 AM
His lot also has the stipulation that they can choose to build a full-on structural garage, but he has stated he does not want to spend the extra amount to build something since this pre-made and delivered shed is cheaper.
Maybe more importantly, the cost to the member of hiring an attorney may exceed the cost of building a full-on structural garage. I would have to look at the law in Ohio and the HOA's governing documents, but usually the prevailing party does not win an award of her or his attorney's fees from the losing side. Perhaps a neighbor could make the complaining member aware of all this, and the member can incorporate this dose of reality into his decision-making.
NpS
(Pennsylvania)

Posts:3913


08/06/2019 4:46 PM  
Posted By RussH5 on 08/06/2019 9:24 AM
We have tried to communicate with him and offer a resolution that would require some work on his part to gather signatures for a change in the rules, but he flat stated to us that he wants a yes or no answer and it appears his direction is to head to court.


Give him the "no" that he asked for.

You offered an alternative, which he rejected. Under what authority did he reject your BOD's legitimate authority? None. How do you think a judge is going to react to his arrogance and his unwillingness to take responsibility for ignoring your notices? Not well I think. And his unwillingness to work things out or take any action to address your 2/3 requirement? Same answer.

Good recommendations from others.

Sikubali jukumu. Read all posts at your own risk.
TimB4
(Virginia)

Posts:16551


08/06/2019 6:40 PM  
Should the Board enforce the covenants? Yes.

If this issue actually went to court, would the member win? It's possible.

Since the developer, who was running the HOA at the time, chose not to enforce the covenants, an argument can be made that the covenant for the shed size is null and void. However, it would take a court case to determine this.


My advise is similar to others, stick to your guns and if a legal challenged is actually done, worry about it then.
NpS
(Pennsylvania)

Posts:3913


08/07/2019 4:39 AM  
Posted By TimB4 on 08/06/2019 6:40 PM
Since the developer, who was running the HOA at the time, chose not to enforce the covenants, an argument can be made that the covenant for the shed size is null and void. However, it would take a court case to determine this.


Very weak argument IMO. Courts understand that the incentives of the developer are not like those of the owners. Developers typically don't have any long term interest in what happens to the community. Owners do. Developers will cut any deal they need to in order to move homes, especially when they become financially stressed.

I commend the OP for the manner in which his HOA's transition announcement was done. Also for the invitation to the disgruntled owner to work on changes that might be good for the entire community. These are winning arguments for the HOA.

Add to this the fact that the disgruntled owner admits that he ignored the HOA notices, and I don't think any court will be receptive to the argument that - the developer allowed something - so the HOA has to allow it - and I don't have to follow the prescribed rules for making changes.

Sikubali jukumu. Read all posts at your own risk.
Please login to post a reply (click Member Login on the menu).
Forums > Homeowner Association > HOA Discussions > Grandfather verses new contruction



Get 2 months of free community web site hosting from Community123.com!



News Articles Provided by: Community Associations Network
News, articles and blogs about condos/HOA's

Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.







General Legal Notice:  The content of forum messages are from the posting member and have not been reviewed nor endorsed by HOATalk.com.  Messages posted by HOATalk or other members are for informational purposes only, are not legal or professional advice and do not constitute an attorney-client relationship.  Readers should not act upon this information without seeking professional counsel.  HOATalk is not a licensed attorney, CPA, tax advisor, financial advisor or any other licensed professional.  HOATalk accepts ads from sponsors but does not verify sponsor qualifications nor endorse/guarantee any sponsor's product or service.
HindmanSanchez Legal Notice:  (For messages posted by HindmanSanchez) This message has been prepared by HindmanSanchez for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Members of HOATalk.com should not act on this information without seeking professional counsel. Please do not send us confidential information unless you speak with one of our attorneys and get authorization to send that information to us. If you wish to initiate possible representation, please contact an attorney in our firm. Our attorneys are licensed to practice law in the state of Colorado only.

Legal Notice For Messages Posted by Sponsoring Attorneys: This message has been prepared by the sponsoring attorney for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Readers of HOATalk.com should not act on this information without seeking professional counsel. Please do not send any sponsoring attorney confidential information unless you speak with the sponsoring attorney or an attorney from the sponsoring attorney’s firm and get authorization to send that information to them. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. Sponsoring attorneys that post messages here are licensed to practice law in a specific state or states as indicated in their message signature or sponsor’s profile page. (NOTE: A ‘sponsoring attorney’ is an attorney that is a HOATalk.com official sponsor and is identified as such in the posted message or on our sponsor page.)

Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions )   Terms Of Use  Privacy Statement