HOA Ruling

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grndcomm
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HOA Ruling

Post by grndcomm »

I moved into my house in May of 2006. At closing I received a copy of the covenants. I would like to put a storage shed in my backyard and made the formal request to the HOA. In the covenants it states the size has to be 8 X 10 or smaller. The covenants are dated 2002. In my closing paperwork however is a document stating that the maximum size for a shed is 12 X 16. So I have covenants (2002) stating 8 X 10 and a closing document (May 2006) stating 12 X 16. I would like the 12 X 16 and enclosed that document in my HOA request. My next door neighbor has a 12 X 16 but he had his put in around 2007. I got my request back denied saying they knew some sheds were larger than 8 X 10 but that was a mistake on their part. Going forward the covenants were to be enforced. I spoke on the phone with a real estate attorney and he invited me to come into his office for a free consultation. However over the phone he felt that the document I had from closing (permitting a 12 X 16) was an official document. He ask me to bring in the covenants and of course the document. Wanted to get the wisdom of BH community before I go to the attorney. Here is a link to my document I have referenced in this post. http://satvsys.com/HOA.html


Thanks
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mlebuf
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Re: HOA Ruling

Post by mlebuf »

I'm not an attorney, but if you signed a document stating that 12X16 is allowed, I don't see how they can deny you of that request. To do that would be a violation of their own contract. If they allowed someone else to have a 12X16 shed but not you, they are basically practicing selective enforcement. That is a no-no. Keep in mind that it you put up a 12X16 structure, to enforce the covenants they will have to sue you and put up a bunch of association money. If they lose they may have to pay your legal fees as well. A good HOA attorney will be of enormous help. Good luck. Many HOA hobby cops suffer from delusions of authority or want you to believe they have more power than they really do.
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FrugalInvestor
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Re: HOA Ruling

Post by FrugalInvestor »

Why was there a document other than the covenants with your closing papers addressing sizes of sheds? It sounds odd.

Other than that, it seems that the HOA is being straightforward at this point admitting that they made a mistake with that document, for whatever reason it was there. HOAs are often run by community volunteers and do sometimes make mistakes. Whether or not you can hold them to the larger size probably depends on state law so the attorney will help...if the expense and hassle is really worth it to you.

Personally I'd probably take them at their word and live with the smaller size providing they gave me assurance that others will be treated similarly. However, I seem to be one of the few who see value to what HOAs do in maintaining the appearance, desirability and property values of neighborhoods.
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TRC
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Re: HOA Ruling

Post by TRC »

We also love in a neighborhood with covenants that prohibits certain things (including large sheds) , but they really aren't enforced. I built a 16 x 20 shed and just cleared it with my immediate neighbor since it was near the property line. How active is your hoa? I would build the bigger one and if they give your crap, just send them a copy of the closing documents. It's your house, your land and your money.
johnubc
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Re: HOA Ruling

Post by johnubc »

I would ask the HOA for the document that reminded the updated document regarding shed size. This is the problem with HOA's and with a board that is usually very inexperienced. Unless they reminded the updated document, I think (I am not a lawyer) you have a leverage point to argue on. The fact that your neighbor has an oversized shed may help you.
Longdog
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Re: HOA Ruling

Post by Longdog »

They cannot arbitrarily enforce covenants on some residents and not others. I would hope it could get resolved without going to court, though probably not without having an attorney representing you who can "persuade" the HOA (and presumably their attorney) that it really isn't in their best interest to do so.
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mrc
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Re: HOA Ruling

Post by mrc »

Local zoning generally trumps land conveyance covenants, and covenants trump “HOA architectural guidelines.”

Generally, the lower level documents can be more restrictive, but not more permissive. In this case, the covenant states the shed can be no larger than 8X10, but the guideline states 12X16. The guideline is in error because it violates the covenant, but likely doesn’t violate any zoning ordinances.

That you have a counter example merely implicates a past HOA board’s incompetence when they approved the neighbor’s application for a 12x16 shed.

The trouble with HOAs IMHO.
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tomd37
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Re: HOA Ruling

Post by tomd37 »

In my community, the CCRs were originally imposed back in 1988 and have been amended several times. But those amendments had to follow certain procedures as stated in the CCRs and properly voted upon by a certain percentage of the homeowners for either approval or disapproval. I suggest you research your CCRs to determine what your procedures are and whether or not any changes made were done correctly. Then you might find out if your "have any legs to stand on". I don't think any Board can arbitrarily change or interpret official CCRs.

I am a former Board member and am currently advising the Board as to the status of an amendment approved back in 1995 but not officially filed and recorded with the local government. It is beginning to appear that the amendment has no basis as is was not officially filed and recorded. If this is the case then things stand as they were before the proposed amendment or a new amendment must be written, proposed, and voted upon.

I suggest you look into the original CCRs as developed, imposed, and possibly amended.
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Re: HOA Ruling

Post by freebeer »

As others noted, a specific restriction in the covenants can't be contravened by a Board decision and my guess is after they agreed 12x16 was OK some owner pointed that out to them and they rescinded the policy. IANAL but I don't think you have any legal leg to stand on.

But given your neighbor's 12x16 shed you might have a route to informal approval (or at least the HOA looking the other way), especially if your lots are big enough that a 12x16 isn't obtrusive and so it seems that the general feeling is that the original covenants were overly restrictive. I.e. back in the day people had push mowers but now they have lawn tractors. So if both your neighbors will sign something saying they don't object to your having a 12x16 shed, you might be able to squeak by, informally. I don't think the Board could approve it legitimately but with neighbors on board they might tell you informally that they won't go after you if you put one in of that size. OTOH if either of your neighbors aren't OK with it I suspect you will be out of luck (maybe a good time to bake some banana bread for sharing...).
tomd37
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Re: HOA Ruling

Post by tomd37 »

And new neighbors moving in sometime in the future might change things.....
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bertilak
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Re: HOA Ruling

Post by bertilak »

mlebuf wrote:I'm not an attorney, but if you signed a document stating that 12X16 is allowed, I don't see how they can deny you of that request. To do that would be a violation of their own contract. If they allowed someone else to have a 12X16 shed but not you, they are basically practicing selective enforcement. That is a no-no. Keep in mind that it you put up a 12X16 structure, to enforce the covenants they will have to sue you and put up a bunch of association money. If they lose they may have to pay your legal fees as well. A good HOA attorney will be of enormous help. Good luck. Many HOA hobby cops suffer from delusions of authority or want you to believe they have more power than they really do.
My guess is that the full agreements says something along the lines of abiding by the covenants AND that there are formal procedures for changing the covenants. So, if the covenants ave been changed and it can be shown that the formal process for changing them had been followed then the new covenants hold.
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grndcomm
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Re: HOA Ruling

Post by grndcomm »

Thank you to all the posters here. I will update this later after I talk with some of the board members. One is suppose to call me this afternoon.
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Kenkat
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Re: HOA Ruling

Post by Kenkat »

The original covenants trump your storage guidelines document. The HOA has no legal authority to modify the covenants except by following the specific requirements as usually stated in the covenants. Unless you have evidence that this procedure was followed, I don't think you have any basis for the larger storage shed unfortunately.

The other thing I will add - unless the covenants specifically state it (which is unlikely), the HOA board has no authority the grant any type of exception for you. In theory, the HOA board could tell you "ok, go ahead", but you would still be in violation of the covenants and other non-board HOA members could bring legal action to force you to comply. This is probably not going to happen, and even if it did it could still fail based on other unenforced exceptions, but still an important point to consider.
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grndcomm
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Re: HOA Ruling

Post by grndcomm »

Concerning the covenants, they definitely need to be updated in other area's. For example it states no satellite dish greater than 18" allowed. Every dish in the neighborhood is over 18". 18" dish were the original dishes in 1994 when Directv started. Also FCC has ruled over HOA's that a 1 meter dish or smaller is allowed. Also FCC has ruled over HOA's in that an outside antenna can be installed. Our covenants prohibit that.
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Re: HOA Ruling

Post by tomd37 »

It is my understanding that the CCRs cannot override some things. For example, I think the FCC rule change about twenty years ago or so overrules the old CCRs formed prior to that. Another example in our CCRs is that cars cannot be parked on our streets except for social activities. Well since our streets were accepted into the Metro system by the Metro government, that CCR no longer can apply. Had the streets remained privately owned by the developer then that CCR could be enforced. Sometimes CCRs are not changed based on other governmental actions, but that does not mean they can still be enforced. It sometimes is easier to ignore changes to governmental law that it is to follow written procedures to change the CCRs.
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tinscale
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Re: HOA Ruling

Post by tinscale »

I would think HOA's can revise CCRs at any time with a certain % of votes or whatever.
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FrugalInvestor
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Re: HOA Ruling

Post by FrugalInvestor »

tinscale wrote:I would think HOA's can revise CCRs at any time with a certain % of votes or whatever.
We once live in a community with CCRs that required a 2/3 vote of the members to revise. It was pretty close to impossible to get that level of agreement on anything. So, yes, you're correct but often not very practical.
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Re: HOA Ruling

Post by tomd37 »

Ours require 3/4 to approve amendment.
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Re: HOA Ruling

Post by WolfgangPauli »

I would think the covenants rule. There probably is a statement in the mountain of paperwork confirming that and there almost always is also a document you signed which says you agree to automatic fixes of administrative errors - which this may be considered.

I will use this to get on my soapbox about how I believe everyone should be represented by an attorney in a real estate closing. Presumably an attorney would have discovered this discrepancy and called it out to you.

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earlyout
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Re: HOA Ruling

Post by earlyout »

IANAL but the mortgage holders may also have to approve any change to the covenants. My current HOA requires 2/3 of the unit owners and their mortgage holder to approve any change in the covenants. Do you know if your neighbor's oversized shed was approved by the board or did he just build it that size and no one complained? The board may have the option of bringing suit against your neighbor to force him to remove the oversized shed and pay the resulting legal fees. I would think twice before trying to force the board's hand since you may get stuck paying all of the legal fees. If you haven't done so, read the existing covenants.
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grndcomm
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Re: HOA Ruling

Post by grndcomm »

earlyout wrote:IANAL but the mortgage holders may also have to approve any change to the covenants. My current HOA requires 2/3 of the unit owners and their mortgage holder to approve any change in the covenants. Do you know if your neighbor's oversized shed was approved by the board or did he just build it that size and no one complained? The board may have the option of bringing suit against your neighbor to force him to remove the oversized shed and pay the resulting legal fees. I would think twice before trying to force the board's hand since you may get stuck paying all of the legal fees. If you haven't done so, read the existing covenants.
My neighbor's shed is a 12 X 16 and he used the document I posted a link to. We both moved within 6 months of each other. He a good neighbor and I do not want to do anything that could bring a consequence to him. My thinking was a precedent had been set with him and a few others with larger than 8 X 10 sheds. He and I have talked and he told me I could use him for an example of larger than 8 X 10 sheds. The board member who was suppose to call me never did. As much as I would prefer the 12 X 16, I am not going to hire attorneys as it would just be too expensive. However the board does meet either monthly or every other month and I will attend the next meeting to see if the covenants can be changed.
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Re: HOA Ruling

Post by randomguy »

grndcomm wrote:
earlyout wrote:IANAL but the mortgage holders may also have to approve any change to the covenants. My current HOA requires 2/3 of the unit owners and their mortgage holder to approve any change in the covenants. Do you know if your neighbor's oversized shed was approved by the board or did he just build it that size and no one complained? The board may have the option of bringing suit against your neighbor to force him to remove the oversized shed and pay the resulting legal fees. I would think twice before trying to force the board's hand since you may get stuck paying all of the legal fees. If you haven't done so, read the existing covenants.
My neighbor's shed is a 12 X 16 and he used the document I posted a link to. We both moved within 6 months of each other. He a good neighbor and I do not want to do anything that could bring a consequence to him. My thinking was a precedent had been set with him and a few others with larger than 8 X 10 sheds. He and I have talked and he told me I could use him for an example of larger than 8 X 10 sheds. The board member who was suppose to call me never did. As much as I would prefer the 12 X 16, I am not going to hire attorneys as it would just be too expensive. However the board does meet either monthly or every other month and I will attend the next meeting to see if the covenants can be changed.
I don't think precedent matters much with HOAs. Far more likely to get the larger sheds removed.Changing the CCR's is doable but as other people have pointed out, often that is painful. You can try the ask for foregiveness approach but you then the risk of having to remove the structure.
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Re: HOA Ruling

Post by Kosmo »

What does the most recent set of rules say? It doesn't matter what the rules were when you moved in.

I'm on the board of a townhouse community where I own a rental. Past boards played fast and lose with the rules and gave themselves and friends lots of leeway. So there are a number of non-conforming units. We cannot force them to make changes that had been previously approved even if they never should have been allowed. But we are continuously fighting with people who use the reasoning "this guy has it so why can't I?" Just because someone else has a larger shed doesn't mean they are allowed to have it and it doesn't mean you can have one.

By the way, get everything in writing. Don't rely on phone calls or speaking in person to anyone.
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grndcomm
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Re: HOA Ruling

Post by grndcomm »

Kosmo wrote:What does the most recent set of rules say? It doesn't matter what the rules were when you moved in.

I'm on the board of a townhouse community where I own a rental. Past boards played fast and lose with the rules and gave themselves and friends lots of leeway. So there are a number of non-conforming units. We cannot force them to make changes that had been previously approved even if they never should have been allowed. But we are continuously fighting with people who use the reasoning "this guy has it so why can't I?" Just because someone else has a larger shed doesn't mean they are allowed to have it and it doesn't mean you can have one.

By the way, get everything in writing. Don't rely on phone calls or speaking in person to anyone.

Well here they can enforce the rules and have had one home owner take down a fence that did not meet requirements of the covenants. This community has a FB page where HOA board members post info on meetings and other info pertaining to the community. I have never seen any disgruntled home owners other than the one who had to remove a fence. But he should have known he needed approval before installing the fence. The larger sheds have been here for years with no threat of having to have them removed. So what is your answer to those who use the "this guy has it so why can't I"
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Re: HOA Ruling

Post by Kenkat »

tomd37 wrote:Ours require 3/4 to approve amendment.
In my state at least the change must also be properly filed with the County Recorder's office in order to take effect.
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Re: HOA Ruling

Post by earlyout »

grndcomm wrote:
Kosmo wrote:What does the most recent set of rules say? It doesn't matter what the rules were when you moved in.

I'm on the board of a townhouse community where I own a rental. Past boards played fast and lose with the rules and gave themselves and friends lots of leeway. So there are a number of non-conforming units. We cannot force them to make changes that had been previously approved even if they never should have been allowed. But we are continuously fighting with people who use the reasoning "this guy has it so why can't I?" Just because someone else has a larger shed doesn't mean they are allowed to have it and it doesn't mean you can have one.

By the way, get everything in writing. Don't rely on phone calls or speaking in person to anyone.

Well here they can enforce the rules and have had one home owner take down a fence that did not meet requirements of the covenants. This community has a FB page where HOA board members post info on meetings and other info pertaining to the community. I have never seen any disgruntled home owners other than the one who had to remove a fence. But he should have known he needed approval before installing the fence. The larger sheds have been here for years with no threat of having to have them removed. So what is your answer to those who use the "this guy has it so why can't I"
What logic do you use when raising kids? If a peer of one of your children gets special treatment do you let that precedent dictate what you do with your children or do you stick by the established rules in your household?
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Re: HOA Ruling

Post by michaeljc70 »

Longdog wrote:They cannot arbitrarily enforce covenants on some residents and not others. I would hope it could get resolved without going to court, though probably not without having an attorney representing you who can "persuade" the HOA (and presumably their attorney) that it really isn't in their best interest to do so.
It is actually not arbitrary if they decided at some point to start enforcing it on everyone putting up a new shed. If they said Bob can put up a 12x16 shed in May and Sue couldn't in June and Tom could in July, then you'd have a case.
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Re: HOA Ruling

Post by ralph124cf »

Is there any chance that you could put up two sheds fairly close together?

Ralph
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Re: HOA Ruling

Post by Longdog »

ralph124cf wrote:Is there any chance that you could put up two sheds fairly close together?

Ralph
Like the well-known composer, Arthur Two-Sheds Jackson: https://www.youtube.com/watch?v=HLjS3gzHetA
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Re: HOA Ruling

Post by Kosmo »

grndcomm wrote:
Kosmo wrote:What does the most recent set of rules say? It doesn't matter what the rules were when you moved in.

I'm on the board of a townhouse community where I own a rental. Past boards played fast and lose with the rules and gave themselves and friends lots of leeway. So there are a number of non-conforming units. We cannot force them to make changes that had been previously approved even if they never should have been allowed. But we are continuously fighting with people who use the reasoning "this guy has it so why can't I?" Just because someone else has a larger shed doesn't mean they are allowed to have it and it doesn't mean you can have one.

By the way, get everything in writing. Don't rely on phone calls or speaking in person to anyone.

Well here they can enforce the rules and have had one home owner take down a fence that did not meet requirements of the covenants. This community has a FB page where HOA board members post info on meetings and other info pertaining to the community. I have never seen any disgruntled home owners other than the one who had to remove a fence. But he should have known he needed approval before installing the fence. The larger sheds have been here for years with no threat of having to have them removed. So what is your answer to those who use the "this guy has it so why can't I"
Well the guy who put the fence up without approval is clearly wrong. The fact that large sheds already exist in the community is not relevant to whether the board is permitting new ones to be built. The lack of threat or desire of removal may just mean that the sheds are being tolerated as they exist. Again, verify what the most current set of rules says. But don't assume that because something is not against the rules means that it is allowed.

In response to your direct question, we effectively tell those people "tough, you're not getting what you want". The official letter says something along the lines of "Past boards have permitted alterations that should never have been permitted. That does not exempt you from following the established rules. We are actively trying to bring the entire community back into compliance with the rules."
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Re: HOA Ruling

Post by ERISA Stone »

Try the community at www.hoatalk.com. They were very helpful in providing suggestions when I had an issue with my HOA.
meebers
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Re: HOA Ruling

Post by meebers »

Our HOA covenants are constantly being thrown into the wind by changes in our state statutes. Our HOA lawyers follow the state statutes and "dismiss" for the most part, the HOA documents. Of course we could update our Covenants etc. for $$$ but that would be short lived. :confused
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Re: HOA Ruling

Post by KyleAAA »

A similar situation happened with my wife's HOA. A tenant was told a certain rule was different than what was in the covenant (forgot what it was, but it was in writing in a closing document). After some legal maneuvering, the HOA was forced to allow the exception. I don't think there was a long time lag between closing and the conflict, though. Perhaps an argument could be made that you gave up your right to a larger shed by waiting so long if the rules have changed in the meantime. It's worth asking a lawyer about.
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Re: HOA Ruling

Post by S&L1940 »

Two HOA instances:
Owner was denied approval to plant additional landscaping
In another community an owner was told to remove a decorative door ornament
In each case the owners walked their community and noted and photographed other homes in violation of the documents.

Both owners prevailed as they demanded that other homes be brought into compliance by removing the offending changes. Something the HOA's decided not to attempt. Not a legal person yet wonder if this is like a neighbor's fence sitting on your property by a few inches without your demanding it be moved eventually establishes a new property line?
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Re: HOA Ruling

Post by LadyGeek »

This thread is now in the Personal Finance (Not Investing) forum (HomeOwners Association).
Longdog wrote:
ralph124cf wrote:Is there any chance that you could put up two sheds fairly close together?

Ralph
Like the well-known composer, Arthur Two-Sheds Jackson: https://www.youtube.com/watch?v=HLjS3gzHetA
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