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For a neighborhood that has Restrictive Covenants in place (they're registered at closing), but no active HOA or any kind of neighborhood leadership after the developer closed on the last lots, how would a homeowner go about requesting a variance to the Covenants?
As an example, the covenants might stipulate that a utility shed can be built in the backyard, but it cannot be larger than 8 x 8 feet. How would a homeowner seek approval to erect a 10 x 12 shed?
In a lot of neighborhoods, you'd submit a request like this to the HOA's Architectural Review Board or the Developer. We have neither. All we have now are the covenants in place saying 8 x 8 feet and submit to the developer for a variance, but he's no longer here and we have no HOA.
In my research, I've read that our covenants are still enforceable by the other homeowners via the legal system now that the developer is gone.
I just can't find any mention of how the variance approval process would work after the developer has left.
Are the restrictive covenants still in effect? I have a rental house in a 55+ community that the covenants were not legally renewed after their initial expiration. There's a group that operates the amenities (pool, etc) but they have no authority over the deed covenants. In Florida you can look it up online. You may need a legal referral in North Carolina just to CYA.
you have restrictive covenants in place.
Yes, normally variances would go to a "board" for approval.
You don't have a board.
Therefore, I'd suggest (shy any legislation specifying limitations) you need the approval of every other homeowner that is subject to said covenants.
It would also be a good time to see if the covenants automatically expire at some point, and consider taking action as a group to modify/delete any covenants you were all in agreement on changing/removing
Location: Sarasota/ Bradenton - University Pkwy area
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I've actually had this situation come up before. Go back and read the restrictions to see what percentage of the lot owners have to agree to any changes or variances.
In my seller's particular case, it was a pool cage found to be partially built within the HOA's easement. Per the community's deed restrictions, we had to get 2/3 of all lot owners to agree to a variance in order to get the issue cleared for the title policy and close on the sale.
The owner, myself and a notary from the seller's law firm had to go door to door several days / evenings to collect enough signatures on forms drawn up by the lawyer in order to file for the variance for the pool cage that had been installed over a decade before.
Most likely you will have to hire a lawyer to help you with this as well.
I have been told that covenants are a legal contract recorded as part of the deed. Having an HOA makes it easier to enforce but any one can initiate a court action to enforce compliance with the agreed to covenants. Now some old covenants have been overridden as discriminatory and if you tried to enforce them but ones like restrictions on outbuildings and such can be enforced if someone wants to take it to court.
Have you talked to any of your neighbors to see if any have already worked through this situation? I'd suspect you aren't the first person wanting to pursue a variance, especially if the covenants are very strict. If your neighborhood/sub has a Nextdoor group you could probably get some input there.
For a neighborhood that has Restrictive Covenants in place (they're registered at closing), but no active HOA or any kind of neighborhood leadership after the developer closed on the last lots, how would a homeowner go about requesting a variance to the Covenants?
As an example, the covenants might stipulate that a utility shed can be built in the backyard, but it cannot be larger than 8 x 8 feet. How would a homeowner seek approval to erect a 10 x 12 shed?
In a lot of neighborhoods, you'd submit a request like this to the HOA's Architectural Review Board or the Developer. We have neither. All we have now are the covenants in place saying 8 x 8 feet and submit to the developer for a variance, but he's no longer here and we have no HOA.
In my research, I've read that our covenants are still enforceable by the other homeowners via the legal system now that the developer is gone.
I just can't find any mention of how the variance approval process would work after the developer has left.
Ideas?
If there is no provision for an exception to the rules there IS no procedure. There is no board and there is no architectural review board. And apparently the homeowners like it that way, because they all agreed to it.
You have stated it correctly- any homeowner can choose to enforce the covenants. I suppose you could obtain a written agreement from all the homeowners not to object.
Or just do ahead and do it anyway. Do you feel lucky?
Yes, the covenants are part of the recorded deed here, so they are in effect. It also does stipulate that another homeowner can take an offending party to mediation and ultimately file a lawsuit against them to remove the non-compliant item.
The neighborhood is a little too big to go door-to-door asking for signatures of agreement from the other homeowners. I think I'll have to talk to a lawyer and see what they have to say.
Yes, the covenants are part of the recorded deed here, so they are in effect. It also does stipulate that another homeowner can take an offending party to mediation and ultimately file a lawsuit against them to remove the non-compliant item.
The neighborhood is a little too big to go door-to-door asking for signatures of agreement from the other homeowners. I think I'll have to talk to a lawyer and see what they have to say.
Thanks for the reply folks.
Have you actually read all of the covenants? Do you understand them fully? Usually there is a provision in there for amending the covenants that requires a certain percentage of the current homeowners to agree to.
Also, there is typically an expiration date on the covenants. Have you checked on this?
And one other point is the effective nullification of one or more of the covenants due to lack of enforcement of said covenants against other violators. Selective enforcement is not likely to be effective if it is fought.
And one other point is the effective nullification of one or more of the covenants due to lack of enforcement of said covenants against other violators. Selective enforcement is not likely to be effective if it is fought.
This would be one of the first things I'd look into. "In effect" does not mean "enforceable" and if there are examples of others violating a specific covenant and it not being enforced, even though the violations are known to neighbors, could work in your favour.
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