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Subject: Home erected against Covenants
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TereseS
(Kentucky)

Posts:8


04/27/2021 6:46 PM  
I'm new to our community and offered to be HOA Secretary. Our Covenants state, in a round about way, all homes need to be built on site and not "hauled" in. In someone's great wisdom they included the verbiage that Single Wide Trailers are not allowed, so some assumed Double Wides were.

a few years ago, the board was in transition to due a few deaths, and a lot owner came to a new board member and asked if they could have a Modular Home.

Long story short... It's a double wide trailer. It's not like we are going to tell her to remove it after 18 months, so we need to write a letter of sorts (Covenant Exception Letter??) and put it in her file. We also plan to amend our Covenants to clean up the verbiage and add that all residential structures/plans need to be approved by the board so this can't happen again.

We are a small community and currently only have 6 homes on lots.

Any assistance on this would be great.

Thank you,

Terese
AugustinD


Posts:313


04/27/2021 6:59 PM  
Appeals courts have heard a fair amount of disputes involving covenant wording about the types of homes allowed in a HOA. In my opinion, your board should tell an HOA-specialized attorney what you want for a proposed amendment to the covenants and also what you want in this variance letter. The variance letter should meet some legal standard set by either the covenants or case law.

Amending a Declaration of Covenants (CCRs) is expensive and often takes a year. Figure out if there are other amendments on which you want the members to vote. Present it all as a singled proposal.

It's also possible the attorney will have a better solution.

FWIW, I agree that, after 18 months, any Board effort to get rid of the double wide would be expensive and possibly, also legally wrong. These sorts of mistakes happen. I will say if the covenants are clear that homes need to built on site and not hauled in, then I do not think much of the Owner who pulled this stunt. I hope whatever is written up, for this Owner's file, does have the HOA attorney's signature on it and, while granting a variance, the letter also includes a strong warning to obey the covenants in the future.

I think this owner has made the board's lives miserable and increased the possible liability of the HOA.
MelissaP1
(Alabama)

Posts:10131


04/27/2021 9:20 PM  
Now a days you may need to define the home not as "modular" but non-moveable. Not all modular homes are "trailers". They can be built without "wheels" under them. Which more less defines the difference between a home and a trailer. A house will have a foundation that is non-moveable. Modular homes of present can fall into that category.

Best to define what is meant by "modular" and "trailer". Many homes are now assembled in a warehouse and brought on site. Thus that may make it "modular".

Former HOA President
TereseS
(Kentucky)

Posts:8


04/28/2021 4:48 AM  
Here is how it is written in our Covenants:
(6) Not more than one single family residence shall be erected on a lot. All structures built or installed on the lot must be new. No homes or units older than six months may be installed on the lot. Residences shall contain a minimum of 768 square feet for a single story or ranch style residence with a minimum of 20 feet on each side and a minimum of 1,200 square feet for a two story residence. Said square foot minimum is of living area, excluding basement, garage, porch, carport, deck and overhanging eaves. All exterior construction must be completed and closed in within 12 months of the commencement of construction. No exterior siding of masonry block or cinderblock shall be permitted. Guest Homes are permitted provided they comply with the size and siding requirements and that they are not occupied on a permanent basis. Single wide Mobile Homes are not permitted.


Then, within the first year of writing, the original land owner amended it, but it was left on the last page as an amendment and never fully updated the document.

Here is the amended Use Restriction
ARTICLE IV PARAGRAPH (6), Not more than one single family residence shall be erected on a lot. All structures built or installed on the lot must be constructed on the premises. No mobile homes or homes maybe be moved from other locations and installed on any lot. Residences shall contain a minimum of 900 square feet for a single story or ranch style residence with a minimum of 20 square feet set back on each side, provided, however, there shall be no building set back line from the line of the United States Army Corps of Engineers line. Each two-story residence shall have a minimum of 1,200 square feet. Said square foot minimum is the living area excluding basement, garage, porch, carport, deck and overhanging eves. All exterior construction must be completed and closed in within 12 months of the commencement of construction. No exterior siding of masonry block or cinder block shall be permitted. Guest homes are permitted provided that they comply with the size and siding requirements and that they are not occupied on a permanent basis.
-----------

I do not understand why, when they amended this section, they did not replace/update the text within the document. It only adds to the confusion.


CathyA3
(Ohio)

Posts:1888


04/28/2021 5:03 AM  
Posted By MelissaP1 on 04/27/2021 9:20 PM
Now a days you may need to define the home not as "modular" but non-moveable. Not all modular homes are "trailers". They can be built without "wheels" under them. Which more less defines the difference between a home and a trailer. A house will have a foundation that is non-moveable. Modular homes of present can fall into that category.

Best to define what is meant by "modular" and "trailer". Many homes are now assembled in a warehouse and brought on site. Thus that may make it "modular".




Agree with this. Many modular or "factor built" homes can look no different from homes built totally on site.

Also agree with Augustin's comment that you need a lawyer to guide you through the legal process. When we amended our Declaration it cost us about $1000 for the legal work, and took about a year from drafting the amendments through the vote and final recording of the approved amendment.

I recommend surveying the community first to get an idea of what will be approved. An effective education campaign will help homeowners make informed decisions - and it can make the difference in the outcome if a particular issue isn't a slam dunk one way or the other.

Depending on the language in your governing documents and/or state law, this may require a simply majority of homeowners (over 50%) up through a super-majority of 67% or 75%. You'll spend about the same for an amendment that is not approved for one that is, so it's a good idea to know where you stand ahead of time.
TereseS
(Kentucky)

Posts:8


04/28/2021 5:17 AM  
I do understand the difference between Modular, Manufactured and Mobile.

The lot owner stated a Modular home when it is definitely a double wide mobile home.
we they being deceitful? I have no idea.... but it is something we now need to deal with and clean up the Covenants so this can't happen again.

JohnC46
(South Carolina)

Posts:10952


04/28/2021 5:42 AM  
Posted By TereseS on 04/28/2021 5:17 AM
I do understand the difference between Modular, Manufactured and Mobile.

The lot owner stated a Modular home when it is definitely a double wide mobile home.
we they being deceitful? I have no idea.... but it is something we now need to deal with and clean up the Covenants so this can't happen again.




Google and read. All 3 are different.
CathyA3
(Ohio)

Posts:1888


04/28/2021 5:54 AM  
Posted By JohnC46 on 04/28/2021 5:42 AM
Posted By TereseS on 04/28/2021 5:17 AM
I do understand the difference between Modular, Manufactured and Mobile.

The lot owner stated a Modular home when it is definitely a double wide mobile home.
we they being deceitful? I have no idea.... but it is something we now need to deal with and clean up the Covenants so this can't happen again.




Google and read. All 3 are different.




But people often use the names interchangeably, adding to the confusion. The covenants in communities that allow these types of homes should include precise definitions so that people understand their obligations (this would be a useful amendment if the definitions aren't there now).
LetA
(Nevada)

Posts:1163


04/28/2021 6:28 AM  
The original covenant "" No homes or units older than six months may be installed upon the lot"" was perfect verbiage, why was it amended? In my option the owner in question didn't mislead anyone.

I once watched someone build a modular type two story home, it was trucked in on over 12 flatbeds and needed a crane to install the second floor and roof sections. When you drive by the home, you could not tell it is not a wood framed home built on-site.

In your case, I think someone got a bug up their nose about the whole mobile, modular home thing and assumed the community to look like a trailer park.
AugustinD


Posts:313


04/28/2021 6:32 AM  
TereseS, thank you for posting what the covenant on this says. This helps with my (and no doubt others') understanding.

-- Are all signs that the original land owner properly recorded the amendment with the county?

-- I would be interested to learn if a HOA attorney thinks the amendment was properly recorded et cetera and so valid.

-- I do wonder if a HOA attorney might tell you all to enforce the covenant (amended version) against the Owner. This site talks about covenants that have not been enforced for many years sometimes (e.g. if other conditions are met) falling into the category of being "legally abandoned." This would mean a court would not support the enforceability of the covenant. But this double wide has been present only 18 months. If all the other homes in the HOA comply with the covenant you quoted, an HOA attorney might very well say, "Enforce the covenant. Make the Owner remove the double wide. This is unacceptable. Start with a demand letter. If this dispute looks like it might land in court, we can talk more to see if the cost is worth it to the HOA."

-- If you attempt an amendment, one thing that bothers me is that the current amendment (if properly recorded with the county) first limits each lot to "one single family residence." But then the amendment permits "guest homes." To me, this is confusing and/or what the courts might rule is "ambiguous." To me, it sounds like in fact two single family residences are allowed.

-- AugustinD's layperson's rule of thumb from case law: The bigger the HOA's lots; the more rural the setting; and the more ambiguous a covenant is, the more likely the offending Owner will prevail in court with regard to a violation of a covenant's use restriction. A court's formal finding of "ambiguity" translates to interpreting the covenant (a contractual term) against the entity that wrote the covenant and in favor of the offending Owner.

-- I agree with others' concerns about defining "constructed on the premises" or, if the membership wants to allow, say, modular homes, defining this more. And so on. I know what folks above mean about the confusion. Advances in the technology of home construction maybe have resulted in some definitions becoming moving targets in some states with little regulation. A friend of mine bought a home that was disclosed to be 'site built.' The home was partly constructed by high school kids under supervision of an appropriately certified contractor and teacher. Sections of the home were then trucked to the site. My friend could not prove to the court that case law required the details of the manner of construction to be disclosed. My friend did not use a home inspector (among other options), who likely would have been able to identify not the greatest construction. A lawsuit resulted. The outcome: all sides lost lots of money and time, no awards from the judge, and the attorneys made money.
TereseS
(Kentucky)

Posts:8


04/28/2021 6:36 AM  
I was not a lot owner when all this transpired.... from what I was told by the gal who had the conversation with the lot owners partner (he is not an owner, she is) but he stated they wanted a modular home.

The tax assessors site, plus I know where they bought it... it is a Double Wide Trailer.
Granted, it looks just fine, that is not the issue, but now we had a long time lot owner come to the board and ask why there is a Double Wide when they are not allowed.

And Yes, I did extensively "google" the 3 different terms and I've been in modular homes. If one did not know it was modular, it seems just like a "stick built".
TereseS
(Kentucky)

Posts:8


04/28/2021 7:19 AM  
>>-- Are all signs that the original land owner properly recorded the amendment with the county?

Yes, the original document states they are filed with the county. Dated August 2002.
The Amendment, I am assuming; it's dated 2003, but I do not have a signed copy. I have asked our attorney but she has yet to get back to me.

Our community is what I would call rural. (it's our summer place) lots range from mostly 5 acre, a few lots are in the 20acre range, the one with the Mobile home is 10acres. They happened to put it up near the main road, not tucked back in the woods, so it is quite visible to everyone who comes in.

Most homes were built in 2004-05 as summer homes. Our property had a home that was hit by lightening and burned, we just build last summer.

30 total lots, 6 homes.

>>But then the amendment permits "guest homes."
The original Covenant included the Guest home too. (Did I neglect to type that?)

And, where we are located, we do drive through an area that are single wides and quite run down, it is my assumption that the original land owner wanted to keep the property from becoming a typical run down rural area. As originally stated, Single Wides not allowed.

And, for what it's all worth, we are not looking at legal action, and are not asking the owner to remove their home. This all could have been a misinterpretation, but we need to nip it earlier than later so this cannot happen again.

Last fall, another smaller lot sold and the new owners were told that Double Wides were "OK" to put on the property and what their plans were was to build a home out of "containers". They were told that was against our Covenants.
AugustinD


Posts:313


04/28/2021 7:56 AM  
Posted By TereseS on 04/28/2021 7:19 AM

>>But then the amendment permits "guest homes."
The original Covenant included the Guest home too. (Did I neglect to type that?)
You typed it for the original covenant and the amendment. My writing was poor on the point.

Is there any writing in the Declaration that permits the Board to grant an exception (sometimes called a "variance") to the covenants? I think this would be a bit unusual, but I want to try to be thorough, if only for the hoatalk archives.

It's not quite clear to me that the amendment is lawful. The lack of a signature is troubling. But if the amendment is enforceable as a covenant (by a court's standards, or per whatever the HOA attorney says), I do dislike an HOA finding itself in a position of ostensibly granting permission for something that blatantly violates the covenants.

The biggest liability concern to me: Someone (like the person you mentioned) sues both the HOA and the double wide owner for violating the covenants. Contrary to what some people think, HOA Boards are not all powerful. Boards are obliged to do only what the covenants and possibly state statute empower them to do. The only time a board has the lawful authority to violate a covenant is if the covenant represents a bona fide conflict with a statute (e.g. the federal fair housing statute) or possibly case law.

It might be interesting to see when the double wide was first manufactured. This would identify whether it violates the original covenant's six month rule. Just in case the Owner claims that the amendment is not enforceable due to a lack of signature or similar.

I hear you that, all things considered, the board just wants to let this one owner get away with his/her double wide. I hope you can update the thread with what the attorney advises.
TimB4
(Virginia)

Posts:17599


04/28/2021 3:14 PM  
Posted By TereseS on 04/27/2021 6:46 PM

a few years ago, the board was in transition to due a few deaths, and a lot owner came to a new board member and asked if they could have a Modular Home.

Long story short... It's a double wide trailer.




For the differences between a modular home and a trailer see:

What's the Difference? - Mobile vs. Manufactured vs. Modular Homes
BenA2
(Texas)

Posts:872


04/28/2021 3:39 PM  
These days modular homes are often built the same as manufactured (mobile) homes. The only difference is a label. If it is labeled as a manufactured home it is regulated by HUD and has to pass certain inspections and must have a specific label. If it is built as a modular home it does not require a label and is governed by local laws. There is no federal definition or regulation for modular homes. The manufacturer makes the decision whether or not to call it a manufactured or modular home.

If your HOA allows modular homes and does not define them in the covenants, you probably cannot deny them simply because they are essentially the same as a manufactured home.

We had a similar situation. We allow modular homes as long as they are on a foundation. Someone wanted to move in a double-wide modular home and place it on a concrete pier foundation. Some owners threw a fit but we could not stop it. No matter what it looked like, it was technically and legally a modular home.
TereseS
(Kentucky)

Posts:8


04/28/2021 4:02 PM  
Let me ask your opinion on this....

>>All structures built or installed on the lot must be constructed on the premises.
No mobile homes or homes maybe be moved from other locations and installed on any lot.

where the term "installed" is used, could this be interpreted as installing a manufactured, modular or Mobile home? as long as it is not a single wide, or used mobile home?
I see "constructed on the premises" as building a house from the ground up.

When we met with our attorney last November, she stated to have a board meeting to discuss this and she'd write up a letter of variance for the home.

Input....
AugustinD


Posts:313


04/28/2021 6:06 PM  
Posted By TereseS on 04/28/2021 4:02 PM
Let me ask your opinion on this....

>>All structures built or installed on the lot must be constructed on the premises.
No mobile homes or homes maybe be moved from other locations and installed on any lot.

where the term "installed" is used, could this be interpreted as installing a manufactured, modular or Mobile home?
I am not sure to whom your query is directed, but FWIW and to me, the phrase "must be constructed on the premises" means any structure installed on the lot must be constructed on the lot. I think this means that manufactured homes, modular homes and mobile homes are all prohibited. On the other hand, obviously the latter interpretation requires drawing a line. And maybe this line is indeed not fair. A court might very well say that "constructed" is ambiguous. The court might observe, "But a modular home arrives in pieces. It's not functional until it is assembled on the lot. Yes the individual sections are constructed elsewhere, but until assembled, it is not serving its intended purpose until placed on the lot and assembled." A judge's finding that a covenant is ambiguous is a big deal. It means the covenant is interpreted against the drafter of the covenant, and in favor of free enjoyment of property.

Consider reading some of the case law on owners challenging certain home styles (including mobile homes) because of claims that the covenants are being violated. Here's what to put into the google search engine for a start:

"covenant" "ambiguous" "construction" "manufactured" "home" site:justia.com
JeffT2
(Iowa)

Posts:617


04/29/2021 9:19 AM  
A strict interpretation, in addition to being ambiguous, would also not likely pass a reasonableness test in court. I suggest your board develop some guidelines that allow reasonable construction techniques.
JohnC46
(South Carolina)

Posts:10952


04/29/2021 12:25 PM  
Posted By JeffT2 on 04/29/2021 9:19 AM
A strict interpretation, in addition to being ambiguous, would also not likely pass a reasonableness test in court. I suggest your board develop some guidelines that allow reasonable construction techniques.



I agree.
TereseS
(Kentucky)

Posts:8


04/29/2021 2:19 PM  
thank you, all of this has been very helpful. I've done a search for HOA Attorney, and not having much luck - maybe if I lived in CA or NY, but I don't.
I have emails in to our attorney, but having difficulties getting her to respond... I've been told she's super busy.

I have a few weeks to do some research before our meeting, I will dig into all the comments here, and I will absolutely give updates if and when i hear from our attorney and what transpires this summer.

Terese
TereseS
(Kentucky)

Posts:8


04/29/2021 2:35 PM  
JeffT & JohnC, thank you. We shall work on some guidelines, we also want all plans approved before start of construction planning.

These are all heavily wooded, unimproved lots, so there is a lot of planning.
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