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If a town's zoning ordinance would otherwise allow the addition to an existing house of an accessory dwelling unit (or in-law suite or granny flat or whatever you want to call it) can such ordinance be overridden by a homeowners' association's more restrictive provisions? We are planning another visit to the Charlotte area in September and, if the answer is town-specific, will be concentrating on the Davidson/Cornelius areas, which we didn't have time to explore fully the last time down, and which, based on further research and on postings on this forum, we now believe to be the best area for us for an eventual retirement home. Being able to add an ADU is important to us, and while we won't be looking at specific real estate listings this trip, we want to at least identify potential neighborhoods for when we are ready to make the move, which will be sometime in the next year or two, and so don't want to waste time exploring neighborhoods where we wouldn't be able to do this.
If a town's zoning ordinance would otherwise allow the addition to an existing house of an accessory dwelling unit (or in-law suite or granny flat or whatever you want to call it) can such ordinance be overridden by a homeowners' association's more restrictive provisions?
Yes. HOA restrictions can't void town, county or state ordinances. However they can add additional property restrictions that are not considered illegal under the law. They are considered an additional easement on the property which the owner agrees to when they purchase the property.
So even if the zoning allows you to add another structure to your property, there may be an HOA restriction that prevents it. It's all legal and it pays to make sure you understand what these restrictions are before you purchase.
It depends on the restrictions in the CC&Rs of the individual HOA. If you are looking to purchase a home in a subdivision with an HOA, read the CC&Rs and understand the existing restrictions. Too many people purchase in a subdivision without reading the restrictions and find out too late that they are not allowed to pursue certain projects they had planned on.
Yes. Local HOA CCR's can't be more lenient than the jurisdiction's Zoning (IOW, if the jurisdiction forbids additions the HOA can't allow them) but they can be more restrictive.
From a more global perspective, it's not just the in-law apartment per se but also the additional sewer and water use (many jurisdictions require you to purchase additional taps for that type of addition) or septic and well issues. That was just one example out of many. Electric service would be another, access a third. If I had time today I could list probably a dozen more that jurisdictions have to take into account.
Thanks, frewroad1 Succinct and to the point. Are HOA regs filed in the Town Clerk's office so that they can be reviewed by the public?
In Mecklenburg county the HOA will be at the county courthouse in the deed book that describes the property. It's similar to a utility easement on the property. However the actual restrictions won't be located here. In NC, all deed restricted HOAs have to be incorporated and the deed book will simply refer to the corporation. You will have to contact the HOA directly for what the actual restrictions might be. It's done this way so the HOA can change the restrictions without having to go and edit all the deed records.
Keep in mind that for existing neighborhoods, there isn't any requirement for a HOA to respond to requests from non-homeowners. If you are planning to purchase a specific home however it is the present owner of the house that is responsible for supplying the info.
In Mecklenburg county the HOA will be at the county courthouse in the deed book that describes the property. It's similar to a utility easement on the property. However the actual restrictions won't be located here. In NC, all deed restricted HOAs have to be incorporated and the deed book will simply refer to the corporation. You will have to contact the HOA directly for what the actual restrictions might be. It's done this way so the HOA can change the restrictions without having to go and edit all the deed records.
Keep in mind that for existing neighborhoods, there isn't any requirement for a HOA to respond to requests from non-homeowners. If you are planning to purchase a specific home however it is the present owner of the house that is responsible for supplying the info.
A lot of this needs correction. Nothing is at the courthouse in Mecklenburg. It's in the Register of Deeds office right next door. Mecklenburg is they only or one of the few counties where the ROD is not located in the courthouse.
Next, the actual restrictions MUST be filed with the ROD. Not filed, not valid. The HOA cannot make a change without re-recording that change. There is no deed record to change in any case. There is nothing about an HOA on a deed. Instead, there's a restrictions document type filed that lists the lot and block of said property and that's what puts the lot under CC&Rs.
Because of what I said above you don't have to contact the HOA to see what the rules are.
The biggest issue is that the ADU is going to fail many architectural review processes with the HOA. Most CC&Rs that I've read specifically ban outbuildings.
Luckily all these documents are online unless before 1995.
To view them:
1) Go to Welcome - Meck A2 AppSvr 2.8.0 and accept the disclaimer.
2) Click Search Real Estate Index.
3) Under Party Name type the name of the neighborhood. Type as less as possible unless you are sure of the exact legal name. Less is better.
4) For document type select Restrictions
Perform your search.
You may also want to search with no document type to check for things like HOA foreclosures which could be bad signs. Mostly they use holding companies to keep it hidden but if you found 30 FCs in one neighborhood you might want to steer clear.
There are some holes in the system if you're going back more than 20 years on an older neighborhood.
There's one more gotcha. Older neighborhoods may not have provisions for fines in their CC&Rs. That doesn't mean they don't have the ability to fine. They lobbied the General Assembly to override the CCR&Rs so you need to be aware of this if you're looking at an older place.
"A zoning, subdivision, or building code or other real estate use law, ordinance, or regulation may not prohibit a planned community or impose any requirement upon a planned community which it would not impose upon a substantially similar development under a different form of ownership or administration."
Though I wouldn't want to take that line apart legally.
There was a to-do in a Cornelius neighborhood on this very topic a while back. Recommended reading - Google this - Gandy, Heritage Green, and accessory dwellings, and it will become clear which entities fit in where with what power.
Thanks again to all who responded. Great info. I understand the architectural review hurdle. I believe that even in the absence of an HOA the town planning department (or some other department?) would have to approve anyway. As respects the architectural review, do you think that an ADU in a new wing of an existing home, or in a carve-out of an existing home, would be more likely to be approved than an ADU in a new building?
Thanks again to all who responded. Great info. I understand the architectural review hurdle. I believe that even in the absence of an HOA the town planning department (or some other department?) would have to approve anyway. As respects the architectural review, do you think that an ADU in a new wing of an existing home, or in a carve-out of an existing home, would be more likely to be approved than an ADU in a new building?
It will depend. Without the specific codes and use tables to look at I doubt anyone could answer that.
One hurdle I would see without having anything in front of me would be a minimum lot size for a stand alone. If you have a double lot you'd likely have to sub-divide the lot. If on septic you'd likely have to have a perc test and if on a well clearances to drill it. If on central water/sewer you'd have to purchase taps for both. The cost of those can run into thousands (going rate here is a combined $15 to $20K).
An attached unit might run into percentage of main building size restrictions, stormwater runoff or lot coverage/green space issues in addition to tap fees or septic/well hook-in approvals.
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