HOA inconsistent on setback

by Rebecca
(China grove, NC)

Visitor Question: As we are about to start building in a neighborhood with 60 year old restrictions, a new POA (property owners association) has been formed. This POA states we need 60 foot setback whereas the county states 35 feet. There are multiple homes built at 35 feet from the 2016 time frame and several more are not set back by 60 feet. We followed the information to submit over last year, and no one mentioned anything. Today they are saying we need this setback, although it has not been followed by others. They say they are setting a new precedent going forward, but we are the last lot. What are our rights?

Editors Reply: The county requirement for a setback is not relevant here, providing there is a POA and there are POA regulations in effect at the relevant time. We'll explain that in a couple of paragraphs.

If you read all of the questions in this section of our website and studied all of our answers, you would find that we generally don't give much comfort to people who propose to violate deed restrictions. Indeed we warn that this is a path of legal jeopardy for someone, and even for subsequent owners of your property or your heirs.

However, we are wavering just a tiny bit in your case. If you in fact submitted this application before the new POA was formed, you might have a cause of action, depending on what exactly your deed restrictions say about the development approval process. Occasionally but rarely we have seen a time limit on HOA deliberations about development applications, and beyond that time limit the development would be considered approved. That possibility is worth a moment of thought.

Another variable might turn out to be how the previous POA was dissolved. Was the organization itself formally dissolved, or when you say there is a new POA, do you mean that there are new officers or a new board for the POA? We are thinking about the timing of all of this.

We sympathize with your view that the rationale of the new POA ("hey, we are setting a new precedent") sounds fishy. If you are the last lot, this is kind of silly. However, we both have to take the long view and realize that in 40 years, someone might want to demolish their current home and build a new one. So this kind of ridiculous-seeming statement might not be struck down by the legal system.

Depending always on the details, the fact that a particular deed restriction has not been enforced for a few years probably will not mean that a court would find that you do not have to follow the deed restrictions. In other words, the fact that someone else did not live up to the letter of the law does not excuse you from doing so. For instance, if you are speeding or your grass hasn't been cut, it doesn't matter legally how many other people were going too fast or not mowing the lawn.

Now let's consider who is the enforcer if a deed restriction is violated. It's not the government; it's the court system, and someone who has legal standing (the right to sue) generally has to file a civil suit to get the declarations enforced. So one reason we said we were wavering is that if you can persuade the POA to grant a permit or other approval format, and you can convince the POA and other property owners not to sue, you can build.

Even if this far-fetched event occurred, would that be wise of you? No, not especially. Current property owners might be persuaded, but what about the oddball person who is about to buy a property next door to you in two years? Would that person be content to walk away? Maybe not. The problem is that the deed restrictions stay there forever until altered.

There is one more way out for you though, and that long shot is that if the POA can easily and quickly change the deed restrictions, you might be able to persuade it to do so. Usually the deed restriction amendment process is fairly tricky, but occasionally we have seen a situation in which the HOA basically can amend parts of the deed restrictions such as setbacks somewhat simply. Check that out before giving up too.

So even though we have wavered, we have to say we predict you will end up having to abide by what the POA says.

But our one and only piece of concrete advice is to consult an attorney licensed in your state and familiar with HOA and real estate law about your options. We have just given you some things to consider before you start working with that attorney.

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