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JVSteve

Can and HOA allow some homes to break the rules?

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Good morning, This is a somewhat drawn out story that has gone on with our HOA for about 3 months now. 

 

My wife and I purchased a Patio Home in a very large subdivision that consists of about 1500 homes. The prices range from around $400,000 to $6.5 million. And there are Patio Homes and Single Family Homes. 

 

We purchased this home and were told by the Builder that we could 'do whatever we wanted' in the back yard, as we owned the property. We knew that term was used loosely, but we asked that because we had plans to build a patio with a nice gazebo, fireplace and kitchen area. 

 

We then met with the Builder, Landscaper, Patio Builder and my wife and I. And in that conversation the Builder said we just had to be 5 feet off the lot lines, and that since we had an electrical easement out back, we decided to put the concrete patio 12 feet off the back line. 

 

The Builder then offered to take the plans that the Landscaper and Patio Builder had come up with, and submit them to the HOA for approval for us. With that confidence, my wife and I began to purchase the items we needed for the Patio (per our agreement with the Patio Builder), such as the fireplace, grill, frig, sink and gazebo. We spent about $10,000 on those items. 

 

The HOA then came back to us weeks later and said we could not build anything 'vertical' off the patio, within 30 feet of the back lot line. 

 

The important part here is that the rules we were then shown said. 

 

1. The 30 foot setback applies to EVERY lot in Jerome Village (our subdivision).

2. No Vertical PERMANENT Structures are allowed in this setback. 

3. Firepits (or in our case a Fireplace), if not attached permanently to the patio, do not need the Design Review Board's permission

 

We did first try and go back to them, and ask for a 7 foot variance, as we were able to move the entire structure up several feet closer to the house. But they also turned that down. Keep in mind, that we only 35 feet from the back of our house to the rear lot line. It is a Patio Home on a much smaller lot than most homes in this subdivision. 

 

So I spoke with a few lawyers here, one being my personal lawyer, and we determined that if we put the entire structure on wheels, that it would no longer be permanent. 

 

We the started out to build it, and we were almost finished a few days ago, and now the HOA has requested a meeting with us, threatened fines, and requested us to stop construction. We were literally about 5 days away from completion. And I was even honest enough to tell them ahead of time that we WERE putting it all on wheels. 

 

Here are a few other important facts:

 

1. There are a few gated neighborhoods in this subdivision. They have allowed those homes on multiple occasions to build large 5,000 sq ft outdoor structures with 7 feet of their lot line. In fact, this particular home went over the lot line, so the HOA sold them more property. Which I also offered to do, and they denied my offer. 

 

2. There is another Patio Home neighborhood, of about 100 Patio Homes, that all have a zero lot line. Meaning they are only 5 feet off of any line, rear, side, etc. We are also in a Patio Home neighborhood, but the lots are slightly bigger to where we are not on top of each other. However, when I asked the HOA why they allowed an entire neighborhood to break the rules when that Builder built those Patio Homes, they won't reply to me on that. 

 

I would just like some good Real Estate advice, on what we should say to them in our meeting. On what we should request at that meeting, etc. I am just hoping that they will either grant the variance, or approve our design on wheels (which I did not think we needed their approval on, but now they say we do). Otherwise, I am willing to take this to court, as they have broken their own rules multiple times. 

 

Keeping in mind, that at the back of my lot, I have about 150 feet of 'green space', then a wooded tree lined area. There will NEVER be any homes built behind us. That was the reason we purchased this home. 

 

Your advice is appreciated. 

 

Thank you,

Steve and Dawn 

 

 

 

 

 

 

 

 

 

 

 

 

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1 hour ago, JVSteve said:

I would just like some good Real Estate advice

 

Then you had better hire a good real estate lawyer who specializes in going up against HOAs.

 

1 hour ago, JVSteve said:

I am willing to take this to court, as they have broken their own rules multiple times. 

 

You're probably going to have to.

 

 

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14 hours ago, adjusterjack said:

You're probably going to have to.

 

It may not come to the point of going to court if they get a lawyer on board. I had a client who had a similar problem with her HOA. She and her husband built a small shed on their property that the HOA said violated the rules. I wrote a letter to the HOA board and copied its lawyer pointing out that a number of other homes in the HOA had sheds built that violated the rules and none of them had ever been told to tear down their sheds. I advised them that this kind of arbitrary enforcement of the rules was not permitted and if the HOA took action against my client to force tearing the shed we would take the matter to court and that, in our state, if we could prove the HOA enforced rules arbitrarily or selectively we may get the court to invalidate the enforcement powers of the HOA entirely, rendering the HOA essentially powerless. I wasn't surprised to see that the HOA quietly abandoned the shed issue. It wasn't prepared to enforce the rules against all the violators and it certainly didn't want to risk the possibility of losing its enforcement powers altogether. The bottom line is that my client got to keep the shed, and the HOA has given up on the shed issue going forward. Point is, a good lawyer might get the HOA to back down with a well drafted letter. No guarantees of that, of course, some HOA boards are more obstinate than others.

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Thank you Tax_Counsel... I appreciate the advice. I have spoke with another Real Estate Lawyer, and that is what he is telling me as well. We have a meeting with the HOA Tuesday, and we'll see what they say. If they don't allow us to continue, I will have him write a letter to them and get them to back down. 

 

Thank you again,

Steve

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