Heideman: Every owner is presumed to know the CCRs

Q:I want to build an addition to my house. I live in a subdivision that has a homeowners’ association. What effect do the CCRs have on my ability to build such an addition?

A: The Declaration of Conditions, Covenants and Restrictions for a subdivision, more commonly known as CCRs, impacts your right to use and enjoy your property.

A developer who wants to place restrictions on lots in a subdivision can do so by recording the CCRs in the office of the County Recorder. Those restrictions can then be enforced by the homeowners’ association (HOA) and sometimes by any lot owner.

The important consideration is that by recording the CCRs, they have been made a matter of public record. Consequently, every purchaser of a lot is put on notice legally that his or her lot is restricted by the CCRs. The homeowner is thus bound by the CCRs.

Every now and then a homeowner complains that he was not made aware of the CCRs because no one gave him a copy. That makes no difference.

Whether the new owner is provided with a copy of the CCRs or not, he is still subject to their terms and provisions. This is because the CCRs are a recorded document. Thus, they are part of the land records, just like your deed. Because of that, every owner is presumed to know the restrictions placed upon his property. Most often, people are aware that the property they are purchasing is part of an HOA and then bound by CCRs. Their real estate agent may inform them, or they will see it on the title report. If you are unsure, be sure to check.

The authority of the HOA is limited to enforcing those restrictions which are contained in the provisions of the CCRs. The HOA cannot go beyond those restrictions unless the CCRs contain some authority for so doing. For example, if the CCRs permit a two-story dwelling, the HOA cannot require an owner to limit the height of his residence to one story.

What HOAs sometimes discover is that the restrictions contained in the CCRs are inadequate. The HOA may feel that certain setbacks or height limitations not contained in the CCRs are desirable. Then the HOA must look elsewhere in the CCRs for authority to impose restrictions not specifically set forth.

A developer can grant authority in the CCRs for the HOA to expand or clarify the restrictions set forth in the CCRs. Most CCRs provide that they may be amended. However, this usually requires a consent of more than a simple majority of all homeowners. Often a two-thirds vote is required.

Sometimes an HOA will attempt to impose a restriction not expressly stated in the CCRs by reference to some general authority granted to either the Board of Directors or an Architectural Committee. An example of one that is commonly found mandates that any new construction be “in harmony with surrounding structures.” Because the word “harmony” can mean different things to different people at different times, such language has been the basis for many a dispute between an HOA or its Architectural Committee and a property owner seeking to place new construction upon his property.

It is probably too much to expect that a developer will anticipate every restriction which, over a period of time, may be desirable to protect property values. This is one reason why CCRs are made amendable.

However, even with the ability to amend and clarify CCRs, it is impossible to anticipate every possible area of dispute and to draft a provision governing such a situation. To even attempt to do so would result in CCRs approaching the length of “The Decline and Fall of the Roman Empire.” Thus, we are forced to interpret and apply CCRs in ambiguous situations, which can be a challenge for even the most seasoned attorneys.

Sometimes, the parties to the matter simply cannot come to a consensus on these unavoidable ambiguities. That is why these matters sometimes end up in court, or in other dispute resolution venues, such as mediation.

Andrew Heideman’s column appears as a public service. It is not intended as legal advice and addresses only general propositions. If you have a question about a matter that affects you, contact an attorney. If you havea question to ask Heideman for this column, call his Green Valley office at 625-4405 or you may e-mail questions to aheideman@duffieldlaw.com.