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Subject: Driveway
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Author Messages
JamesM45
(North Carolina)

Posts:6


05/09/2020 5:18 AM  
Is a paved portion of a driveway required to go from the community road all the way to a garage, house or other structure on a members property? Or is it OK to end the paving beyond visual range of the community, but not at a structure?

Our CCR's only state that "driveways need to be completed within one year of the completion of the house.

Thanks,
Jim
GeorgeS21
(Florida)

Posts:2681


05/09/2020 5:42 AM  
Are you under developer control?

Do you have Architectural Guidelines?

Do you have an ARC or ACB? Have you met with them to discuss?

Do all other driveways look the same?

Why would you want yours to be different?

Are you on the Board or a Committee?
JamesM45
(North Carolina)

Posts:6


05/09/2020 6:30 AM  
Hi George,

Thanks for the reply.

I am president of a small (22 members) HOA with 6 developed homes and 16 empty lots. Of the 6 existing driveways--4 are paved totally with asphalt, 1 is concrete, and the one in question is paved approx. 1/2 way with BST (a product approved by the Board prior to its use).

The issue is weather or not the homeowner can be compelled to pave "more" of his driveway. Legal definitions of the word "driveway" vary and who determines where a driveway ends?

After the homeowner in question paved 1/2 of his driveway our Architectural Control Committee voted to clarify the definition of "driveway" to require that is goes all the way from the community road to a garage. (carports are not allowed) Can that change be made retro-active to apply to our homeowner in question?


The homeowner claims he wants permeability on the area in front of his garage so he has installed gravel there.

The Board (3) is divided with 2 members wanting to proceed with legal proceedings including a law suit if necessary and 1 member not wanting to risk Association funds (which are limited) on a course of action that might not be in the best interest of the whole community.

We have not been under developer control for several years.

Thanks,

Jim
BenA2
(Texas)

Posts:707


05/09/2020 6:56 AM  
In general you cannot add regulations for private property that do not exist in your CC&Rs. In some states the courts give HOAs latitude in interpreting the CC&Rs so you may be able to clarify ambiguous language in your guidelines by adding a definition. You should speak to an attorney before doing so.

The CC&Rs are a contract and it is unfair to change the rules after-the-fact without each party's consent. When the owner put in the driveway it did not violate the CC&Rs so you should accept it. I suspect a court would rule in favor of the owner but only an attorney with experience in local court would be able to predict the outcome.
GeorgeS21
(Florida)

Posts:2681


05/09/2020 7:05 AM  
I disagree with Ben, in general.

First order question, though ... was the plan for the construction of the house and driveway approved by the Board or ARC? Did it show the driveway connecting to the garage?
JamesM45
(North Carolina)

Posts:6


05/09/2020 7:32 AM  
Thank you Ben for your feedback.

We are in North Carolina and It makes sense to seek legal consultation there.

I fear that even if legal consultation suggests legal action is favorable it can not predict outcome. And we would be opening the proverbial "can of worms" with serious risks to our limited funds.

Jim

JamesM45
(North Carolina)

Posts:6


05/09/2020 8:17 AM  
George,

That is a good question! Our situation is a complicated one.

The Developer of our Association went bankrupt in 2007 after completing a model home. The community became the property of the Bank who held the mortgage for the developer. Eventually all the property was sold by the Bank to various buyers, but the Association along with the By-laws and CCR's did not exist anymore. The homeowner in question built their home in 2012 without any feedback from a non-existent Association. Later it was decided to revive the old documents and start up the Association again.

The Association was revived again in 2014 with the same old By-laws and CCRs. No plans were ever approved since no Association was in place at the time the home in question was built. In 2017 the homeowner in question paved about 1/2 of the distance from the community road to his garage. And the new Association did not inspect it for 3 years.

The only reference to driveways in our CCRs is the sentence requiring "the driveway be paved within one year of completion of the home". So, if the definition of the word "driveway" is-"a private access road from a roadway to a point within the property" can the Board insist it go all the way to the garage?

Thanks,

Jim
GeorgeS21
(Florida)

Posts:2681


05/09/2020 8:33 AM  
I'm going to assume the HOA exits per your explanation of the revival - I would be certain of this before proceeding - there should be a significant paper trail with agreement by all the property owners - and, recorded documents.

So, was there a process or ARC etc in place in 2017? If so, did the owner request permission to build the driveway? Was it granted?

In the end, I think you need to sort through this all very carefully - then determine if you have support on the Board to force compliance - and, given your convoluted history, you may lose in court - BUT, you have more money to spend on legal fees than the homeowner in question. Just make sure you have equally applied all provisions - before you go down this path.

The warning horn in the head is going off wrt to the legal status of your HOA - please make sure you have all this sorted, FIRST!
JamesM45
(North Carolina)

Posts:6


05/09/2020 9:55 AM  
OK, thanks George
GeorgeS21
(Florida)

Posts:2681


05/09/2020 12:42 PM  
Question still:

So, was there a process or ARC etc in place in 2017? If so, did the owner request permission to build the driveway? Was it granted?
JamesM45
(North Carolina)

Posts:6


05/14/2020 10:10 AM  
Sorry for the delay George,

The homeowner in question (Mr. A) was the one that resurrected the association after he built his home. So there are no building plans on file with the Association for Mr. A's residence. Mr. A also was the first President and on the Board when the Architectural Control Committee was created in 2016. Mr. A resigned as president and shortly after that the Board notified Mr. A that his driveway was unpaved. Mr. A then paved from the community road into his property---almost half, in 2017. He notified the Board that he had paved his driveway, but the driveway was not inspected until 2019. I became President in 2017 and in 2019, a Board member objected that he had only paved 1/2 of his driveway.

I did research and had trouble with the definition of the word "Driveway". Some definitions say it goes to a house or structure and some say only to a point in the property. So we amended our ACC rules in 2019 to clearify that a driveway was required to go all the way to a garage or house (carports are not allowed). I don't think the new rules can be made retro-active to Mr. A's driveway?

But the Board is still divided as what to do. Basically 2 Board members want to take this issue to court and 1 thinks "grandfathering" in Mr. A's driveway is best for the community.

Any suggestions George?

Thanks,

Jim

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