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Subject: ARC dispute between builder/developer and residents
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Author Messages
TD1
(Florida)

Posts:4


03/10/2020 9:55 AM  
Greetings all. First post and looking for some advice from anyone who's been in a similar situation. Our community is still being built and the developer/builder (one in same) still works on-site from a model home office. There are only 18 lots left to sell and I believe he represents a 3:1 vote ratio for each remaining unsold lot for ARC related issues. The builder's father sold the business to him a couple of years ago, and our community is divided into Phase 1 & Phase 2. Here's the issue at hand.

Phase 1, which consists of approximately 100 homes, had "Set A" of Covenants & Restrictions to abide by and mainly; they were all allowed to erect their metal storage sheds, RV carports, utility sheds, etc. of their choosing and continue to do so to this day. Phase 2, which consists of approximately 50 homes, has the remaining 18 unsold lots. When we bought & built a year ago, the builder had us sign a "No metal structures" form advising they were not allowed. **This is the important piece of info**....the community is entirely under the same HOA and only this one sentence form was created as an addendum during contract signing by the builder. The reason is because the son who took ownership is making money by charging for unattached garages in Phase 2 without any other option being provided. This was NOT the case for Phase 1.

This is perhaps the most damning piece of info that brings me to my point and request for guidance. The builder himself violated Phase 2's C&R's because one homeowner refused to sign the addendum or purchase the house unless the builder agreed to build their unattached METAL carport. The builder agreed with a stipulation that once it was constructed the entire structure would be cosmetically covered to resemble the home (brick wall around the rear storage area and metal support posts covered to look like matching white vinyl columns). You can imagine the uproar created by this from the other resident who were forced (before "AND" after) this to purchase unattached brick garages or do without.

I am wanting to erect a metal structure for our RV that would also have a utility storage area in the rear, and I would also cover it with brick walls, shingled roof, and white columns to match our home. The builder is refusing permission citing that he has control over the ARC and will not allow it because "...he doesn't want to go through what he did when he built the previous metal structure causing all of the fall out." I am not confident that he has a legal standing on this issue and am desperately seeking advice. There are NUMEROUS other Phase 2 residents who want to do nothing more than what a lot of the Phase 1 residents have done and are STILL doing to this day- build metal structures.

Any advice would be **GREATLY** appreciated on how best to proceed. I don't want to just "do it" and then find myself in a legal battle resulting in a loss or litigation. Thank you in advance!!

-T.
N. Florida
SheliaH
(Indiana)

Posts:3048


03/10/2020 10:02 AM  
I suspect the owner’s threat to walk away from the home purchase lipped things in his or her favor. Even if 18 lots are left, getting them sold quickly is probably an issue (and I bet the developer’s finances came into play).

With that, the developer may be within his rights to change the rules as he sees fit until the community is turned over, so you might have to discuss this with an attorney to see what your options are. Until then, you’re correct in waiting because many homeowners get into trouble when they decide to do whatever, the HOA or developer be damned.
TD1
(Florida)

Posts:4


03/10/2020 10:07 AM  
Thank you Sheila. I did some exhaustive research a few weeks ago and came across a blip citing exactly what you're suggesting- the builder may be able to manipulate their own rules so long as they maintain ARC control which is why I have acted hastily. ;-) The insight gained here will be used to help me decide whether or not to consult with (and pay) an attorney to weigh in, thank you.
BarbaraT1
(Texas)

Posts:298


03/10/2020 10:12 AM  
Typically the ARC has the authority to grant a variance to any homeowner for any reason. And maybe your neighbors could have gotten their metal structures if they’d proposed covering them with other materials... had anybody else ever asked?

I don’t think you’d have a leg to stand on if you built without permission and cited this carport as your reasoning. But if your developer is cheap, maybe he won’t spend the money on a lawyer to fight you.
LetA
(Nevada)

Posts:893


03/10/2020 10:19 AM  
Submit your ARC with the same design as the new owner you described in your post and go from there.
JohnC46
(South Carolina)

Posts:9299


03/10/2020 11:33 AM  
TD

You bought and agreed.
TD1
(Florida)

Posts:4


03/10/2020 12:25 PM  
Thank you all. Yes- we submitted the same design which was denied. I have a *really* good relationship with the builder compared to most (there are excessive and repeated issues with their homes that I've taken in stride) and met with in person at length to persuade him to reconsider- nope, lol. It's ok and not the end of the world, and I fully recognize how fortunate I am to even be able to afford a decision like this when the time comes. I just wanted to tie up the loose ends with a last ditch effort of free research from groups like this one and am grateful for the sound feedback. Thank you for taking time to weigh in........we will respect the process and sit tight. :-)
JohnC46
(South Carolina)

Posts:9299


03/10/2020 12:29 PM  
Posted By JohnC46 on 03/10/2020 11:33 AM
TD

You bought and agreed.




ADD ON by OP

Typically the Declarant has the power to change Covenants, Bylaws, Rules and Regulations, grant ARC exceptions, etc by themself before turning the association over to the owners. This is one of the
pitfalls of buying while still under Declarant control.
GeorgeS21
(Florida)

Posts:2299


03/10/2020 1:19 PM  
Well, if you think it is interesting now, wait until the developer turns it over to a HOA - with two different sets of rules?
TD1
(Florida)

Posts:4


03/10/2020 1:24 PM  
Posted By GeorgeS21 on 03/10/2020 1:19 PM
Well, if you think it is interesting now, wait until the developer turns it over to a HOA - with two different sets of rules?




Lol! Very true, but we have a *great* group of like-minded members on our HOA already and not one of them give a rip about the builder's interests. Lots of people just waiting for him to leave the area and then it's going to be metal structures galore, lol.
JohnC46
(South Carolina)

Posts:9299


03/10/2020 2:58 PM  
My HOA's doc referred to Phase 2 and basically said while there might be a Phase 2 and these docs may not apply there is a Phase 2 with no doc changes. Thus I can see two phases of a development with different docs. You old or new Phase?.........LOL
LetA
(Nevada)

Posts:893


03/10/2020 4:11 PM  
Posted By TD1 on 03/10/2020 12:25 PM
Thank you all. Yes- we submitted the same design which was denied. I have a *really* good relationship with the builder compared to most (there are excessive and repeated issues with their homes that I've taken in stride) and met with in person at length to persuade him to reconsider- nope, lol. It's ok and not the end of the world, and I fully recognize how fortunate I am to even be able to afford a decision like this when the time comes. I just wanted to tie up the loose ends with a last ditch effort of free research from groups like this one and am grateful for the sound feedback. Thank you for taking time to weigh in........we will respect the process and sit tight. :-)




I was in kind of the same boat, luckily I only had to wait out 6 months before declarant turnover. The builder declined my self-built pergola from wood, wanted metal at a cost of $10K with concrete slab. I waited for the owner board to take over and easy peasy. I hope you have a quick turnover. I get it, the declarant wants to jack up the price to line their pockets. Those metal patio covers go for $2500 installed 20'x8' alumawood and a concrete slab poured i think is $1500.
JanetB2
(Colorado)

Posts:4211


03/28/2020 6:37 PM  
Keep in mind the State of Florida gives a lot of room in their statutes for developers vs other states which is why I would not buy in FL if a developer still controls an HOA. However, due to HOA’s are suppose to be equal and treat “everyone equally” within the HOA (and which you need to ask a Florida Attorney regarding my next info to be sure). Because the developer did not properly AMEND the CCR’s and instead just have owners sign an additional document regarding not allowing metal buildings ... I would seriously question the legality!!!
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