funny buisness

If anyone has seen my previous post about vacataion rentals I have another question about the same unit. when the developer finished and sold all 5 units he somehow granted one of the units the permission to build a deck on our common area. In the CC&R's it says something about no one including the declarent(developer) can change the exclusive use of common area plan submitted to the county. None of the other owners were informed that one of the units was givin permission to build on the common area and no proof of this permission has been provided to the board that now runs this HOA. The very first HOA meeting that we had was when the developer gave us control of the HOA. Isnt there something illegal in this. I was the first person to move in shouldnt have I or any of the other owners been notified that the property we just bought has been changed. the real question is, Is there anything we can do now or is there a stautate of limitation on these types of things. any feedback is greatly appreciated.

well both, the homeowner and developer have confirmed the permission. I just dont see how he could do that without getting ok from the other owners who were in escrow at the time. Besides that the plan submitted to the county has nothing of this sort recorderd. Am I right to feel it was done illegally?

The permission was given during the negotiations of the sale, but the developer did not do the building the owner HAD it built via owner builder permit.

Parsegh,

I'm not sure that you can argue that the developer changed the common use restrictions of the common area. All the members still have use of the common area, it's just that the common area is not as large as originally platted. IMO, the fact that he allowed one h/o to build a deck that encroaches on the common area doesn't mean the "use" restrictions were changed. However, that's just my opinion and I may be wrong. What do your CCRs say about changing use restrictions or about selling a portion of the common area. Is a vote of the members required?

When the developer is in control he can pretty much do as he pleases. If he gave this person permission to build the deck and encroach on common area, then, IMO, there is really not much that can be done about it. Developers have a habit of doing all sorts of things that are contrary to the CCRs just to make a sale! I know you said there are only 5 homes in your HOA, so I'm assuming it's a very small (land wise) community. Does the fact that this deck encroachs on common area really take away from your enjoyment of the common area? In other words, with this land area no longer available, is there anything the members cannot now do in the common area that they would have been able to do if the deck hadn't been built? I'm thinking a deck doesn't really take up that much area. Bottom line: is it really worth getting upset about, but more importantly, is it worth causing hard feelings between you and this homeowner, who didn't create the problem in the first place?

Mary, you are right, to a point, that the developer can do SOMEWHAT pretty much what he wants.

However, in our jurisdiction anyway, he cannot abridge the common area square footage and either deed, or loan, or allow "easement use" to anyone for any reason outside of what was defined and permitted in the zoning approval for the common areas.

I find it interesting that there is nothing "in writing," and I would proceed to have the deck (or whatever was built on it) removed (after consulting with an attorney, of course).

Our developer tried to allow a homeowner adjacent to our neighborhood the use of a small, narrow strip of common area for him to access the back part of his own property.

He did not NEED to use it, but it would make it more convenient for him to get to the back of his property to mow, etc.

Well, the developer was going to allow him to "lease" the use of that narrow strip as a sort of access easement.

When the board found out we reviewed the plan with an attorney and had to respectfully inform the developer that it was illegal for him to do that with the property.

Our CC&Rs do not allow any transfer of ownership, through any means, including "leasing," on any part of our common areas whatsoever.

Parsegh unfortunately this is probably going to require an attorney to sort out as I don't see the decks owner willingly tearing it down. You need to read all of the governing documents and applicable state law as the answer is probably in several locations. Look specifically for language describing the Common Areas and Limited Common Areas and how to convert one to the other.

While the Declarant may have given his permission unless it was in writing and the changes noted to the master deed it probably is not binding. However if the Association doesn't make a claim on the area the errant owner may obtain rights to the area through adverse possession.