Fighting Covenants?

[Supergumby5000]

I want to put up a shop behind my house. Where I live, there is no zoning requirements. There are no permit requirements since the property already has a single family residence. There is no HOA. My neighbors dont have a problem with it (A few of them are also interested in building detached shops)

The ONLY restrictions I have are in regards to the neighborhood covenants, which were written by the investor who bought a huge plot of land and built a bunch of homes. Pretty much every covenant is EXTREMELY strict but is followed with the generic phrase 'unless Design Committee approval is received". Design Committee = the investor/developer (not an actual design committee).

To give you some perspective, setbacks for my 1 acre lot are 25ft from side lines and 50ft from front and 30ft from rear lines. Based on the covenants and the shape of my lot, about 60% of my lot cannot be built on. My existing home actually violates this covenant already (I am nearer to a side lot line)

So far they seem to be playing ball to some extent so this isnt an issue quite yet, I am not proposing anything outlandish - The shop will match the house, have similar roof height and pitch, etc etc. I would like to build to my county setbacks rather than the covenents (county says 10ft side/rear, 25ft front).

The builder hasnt told me 'no' yet, but he is hinting that he is not a fan of building closer to the property lines. He has even offered to sell me an additional undeveloped adjacent plot (see photo), but that will all depend on if he tries to take me to the cleaners on it.

For some perspective, I want to put a big shop up in my back yard, which is adjacent to a 184 acre undeveloped plot owned by the developer. All houses in my area use well/septic, and they havent found enough water to subdivide and develop the remaining 184 acre plot yet. They have spent 10 years trying to find a strong enough well to build a community water source (fortunately I have my own well and septic).

Granted we should hopefully be able to work something out eventually, If push comes to shove, do I have any ground to stand on to fight the covenants?

 

[My Old Tools]

Sounds like the developer has all the cards. Talk to a real estate attorney but I imagine you signed away your rights by accepting the covenants when you bought.

 

[wolfhawk73]

Call the county to see if you have to abide by the developer's covenants. I live in a neighborhood developed in the late 90's, and it has covenants. There is no HOA, however, and there are no dues to pay to anyone, so the covenants aren't worth the paper they're printed on...at least in my state and according to my real estate attorney.

 

[lakeroadster]

Granted we should hopefully be able to work something out eventually, If push comes to shove, do I have any ground to stand on to fight the covenants?

Caveat Emptor.. Buyer Beware

It's a black and white deal, looks like you are trying to work within the rules. Kudos to you for that.

Only time it's ethical to "fight" the covenants is if they were changed or amended after you bought the property.

I always look at this as if you gave somebody your word. You bought the property knowing the restrictions.

 

[PugetDude]

Caveat Emptor.. Buyer Beware

It's a black and white deal, looks like you are trying to work within the rules. Kudos to you for that.

Only time it's ethical to "fight" the covenants is if they were changed or amended after you bought the property.

I always look at this as if you gave somebody your word. You bought the property knowing the restrictions.

You might not see see a problem, but if I bought the lot next to you to build MY new 100 x 100 x 24' sidewall shop would you have any problem with this?

 

[My Old Tools]

In this area, without an HOA all covenants and deed restrictions can only be enforced by a lawsuit. Do you think the developer will sue to enforce?

 

[Voi]

There is no HOA. My neighbors dont have a problem with it (A few of them are also interested in building detached shops)

The ONLY restrictions I have are in regards to the neighborhood covenants, which were written by the investor who bought a huge plot of land and built a bunch of homes. Pretty much every covenant is EXTREMELY strict...]

My neighborhood sounds very similar to yours with the exception that it's older and the developer isn't very involved in it anymore. I believe he's still alive and still owns a home in the neighborhood but spends most of his time in Alaska.

His protective covenants are largely ignored. I don't know if it's a state or county issue that doesn't give authority to the covenants or if his lack of involvement is the main reason.

You might have more leverage than you realize since his hands are tied on developing the land. I would research what he paid for the land per acre back then. If the setback issue falls through be ready with a reasonable offer. Don't lowball him or expect him to not make some money on appreciation. But don't pay the going rate for buildable land in the area either.

Is the easement helpful, hurtful or neutral to you if you buy and adjacent parcel?

 

[Supergumby5000]

Y'all make it sound like im trying to put up a 20,000 sq ft airplane hanger I was hoping for something along the lines of a 36x48 or similar, with similar height to my home. That would mean no more than 12ft walls.

The developer is playing ball. I have told him I am first interested in building on our lot if applicable. I also told him I dont mind making the structure fit the area (roof height, colors, finishes, windows, whatever).

I am definitely trying to play nice and make everyone happy. I was just curious if I have any options if things were to get messy.

As much as i would love to purchase the adjacent lot, which would allow me to satisfy all covenants, I have a weird feeling that the developer will try to take advantage of me and put a big price tag on the lot. For all I know, that chunk of land may not have water on it (I wouldnt care, it would be combined with my current lot).

I'm all about having a nice neighborhood. I'm not trying to put up some monstrosity of a structure. It will need to compliment my home.

 

[Supergumby5000]

First you say no government restrictions, then you say there are set back rules, which are restrictions.

You need to break the agreement you signed to abide by rules and restrictions and covenant.
You signed, you knew. No attorney is going to go against that for less than lots of money. Buying that lot might be cheaper.

Buy the land. Your building too close to it negates a buy of it by me and anyone else who doesn't want a shop right up their prop line.

Just perspective from someone who would care GREATLY that a shop was right up my property line.
I can buy anywhere, it certainly won't be that lot next to your shop.
BECAUSE your shop too close negates me building on a large portion of MY new lot due to proximity.

Your build ruins that lot to build upon. If your lot is 65 percent ruined, what percent will your shop ruin the lot next door?

Are you having a rough morning?

1) I didnt say no government restrictions. I said no zoning, no further permitting, and no HOA. The mat-su borough (my 'county') has setback requirements that apply to all property.

2) My wife is an attorney. We can play ball with the developer all we want if we had to.

3) Trust me, I WANT that land. I havent seen a price tag yet. Due to the water issues, the land has not been subdivided yet.

4) The only lot that would be adjacent to my proposed shop is currently slotted to be an acre with about 200ft of width. The rear lot line is against a proposed 60ft easement. the opposite side of the easement will be someones back yard to a proposed 1.5 acre lot. Both my current adjacent neighbors have no problems with the shop location.

I'm just gauging my options from the wealth of information on this forum. Thanks for your input. Have a good day

 

[Supergumby5000]

Call the county to see if you have to abide by the developer's covenants. I live in a neighborhood developed in the late 90's, and it has covenants. There is no HOA, however, and there are no dues to pay to anyone, so the covenants aren't worth the paper they're printed on...at least in my state and according to my real estate attorney.

I'll have to look into that. Thanks.

In this area, without an HOA all covenants and deed restrictions can only be enforced by a lawsuit. Do you think the developer will sue to enforce?

The developer is just making sure that IF he is able to find water, and IF he is able to build out the property behind my place, that he will be able to sell it. I totally understand that. And to answer your question, no I dont think he will sue.

Assuming everything were to go to hell in a handbasket, I could just wait until the property is developed (if it were to get that far), get a petition from the purchasing neighbors about putting up a shop, and run with it. I would prefer to do things sooner than that though.

Thanks for the help

 

[Supergumby5000]

My neighborhood sounds very similar to yours with the exception that it's older and the developer isn't very involved in it anymore. I believe he's still alive and still owns a home in the neighborhood but spends most of his time in Alaska.

His protective covenants are largely ignored. I don't know if it's a state or county issue that doesn't give authority to the covenants or if his lack of involvement is the main reason.

You might have more leverage than you realize since his hands are tied on developing the land. I would research what he paid for the land per acre back then. If the setback issue falls through be ready with a reasonable offer. Don't lowball him or expect him to not make some money on appreciation. But don't pay the going rate for buildable land in the area either.

Is the easement helpful, hurtful or neutral to you if you buy and adjacent parcel?

Good perspective. I know who he bought the land from. I'll have to do my research on the selling price though.

The easement does not really affect me. I would rather have a low-traffic neighborhood right of way behind my home than another lot. The land he has proposed selling me would be an acre to the south (left in the photo) of my home, behind my neighbors house.

 

[73RR]

...then keep talking with the developer. It is not likely that the next buyer would build a house any closer to your lot than you would to theirs.
You should ask the developer if you can buy a 30'-40' strip at the back of the adjacent lot. Would that severely impact the size of that lot? Or, buy the entire lot, take the 30' or so and then resell the lot, perhaps at a slight discount.
IMHO, your setbacks are ridiculous.

 

[bobmulry]

Hi,

I just have one question........

Was this disclosed during the escrow and/or title search??????

If not no problem....

If it was, you will have some work to do.....

Good luck,
Bob

 

[Supergumby5000]

Caveat Emptor.. Buyer Beware

It's a black and white deal, looks like you are trying to work within the rules. Kudos to you for that.

Only time it's ethical to "fight" the covenants is if they were changed or amended after you bought the property.

I always look at this as if you gave somebody your word. You bought the property knowing the restrictions.

I really do want to play nice. And I have no intentions of building something that doesnt flow with the neighborhood. Hopefully the developer sees that and will give me a chance. I am currently putting together a complete package with some 3d models so they can get a better visual. Shoot, I'll do whatever they want for the rear lot lines.... fence, a driveway to the back of the shop, whatever they want.

There are a lot of rule breakers in the neighborhood in regards to the covenants but nothing crazy.... Fences that dont meet the requirements, sheds and 'temporary structures' lol in front yards, etc etc.

 

[ddawg16]

What the shop 'looks like' will most likely be a big factor.

If you build something that doesn't look like an industrial building, you improve your odds of approval and less scorn from potential neighbors. And you improve the value of your property.

 

[Supergumby5000]

...then keep talking with the developer. It is not likely that the next buyer would build a house any closer to your lot than you would to theirs.
You should ask the developer if you can buy a 30'-40' strip at the back of the adjacent lot. Would that severely impact the size of that lot? Or, buy the entire lot, take the 30' or so and then resell the lot, perhaps at a slight discount.
IMHO, your setbacks are ridiculous.

Part of the selling point for this developer in this particular neighborhood is the lot sizes. I'm sure I would get worse resistance if I tried to buy a small chunk that would decrease a further adjacent lot.

The setbacks are ridiculous and the developer openly admits that. Like I said, he is just protecting the interest of further development. I totally get that. Hopefully he likes my plan I guess. I just want to be prepared in case he doesnt.

 

[matt_i]

Good diagram. A couple random things I noted. the curved road (dotted lines) looks like it will go about 12' from your shop, if the road is ever built or developed, it would likely need runoff ditches and have snow plowed (?) from it, but that could be very concerning with that location.

Assuming you do get to move forward, you probably need to outline the well and septic drainfield locations as you can't build over either one.

Just me personally, but I would think if you were asking for a small variance, let's just throw out 5 feet since its on my mind, I think you'd go a lot farther. As it is drawn now, you want basically the entire thing to be built outside the "setback" lines.

 

[Supergumby5000]

Good diagram. A couple random things I noted. the curved road (dotted lines) looks like it will go about 12' from your shop, if the road is ever built or developed, it would likely need runoff ditches and have snow plowed (?) from it, but that could be very concerning with that location.

That is all accounted for in the 60ft eastment as drawn.

Assuming you do get to move forward, you probably need to outline the well and septic drainfield locations as you can't build over either one.

Yep. non issue. Well is in the front yard, septic is along the north (right) side of the property just behind the house.

Just me personally, but I would think if you were asking for a small variance, let's just throw out 5 feet since its on my mind, I think you'd go a lot farther. As it is drawn now, you want basically the entire thing to be built outside the "setback" lines.

So the dashed line is showing the covenant setbacks, which again the developer has agreed to are ridiculous. the reason he did this is to make sure people ask him about further development. He is just protecting any future building he does. Definitely a smart move on his part.

As drawn, the building satisfies the county setback requirements.

 

[gungatim]

There are a lot of rule breakers in the neighborhood in regards to the covenants but nothing crazy.... Fences that dont meet the requirements, sheds and 'temporary structures' lol in front yards, etc etc.

I'm no real estate law expert, but does the existence of the other rule breakers and violations of set backs not set a precedence? has he fought these in the past? that may work in your favor...

 

[Supergumby5000]

I'm no real estate law expert, but does the existence of the other rule breakers and violations of set backs not set a precedence? has he fought these in the past? that may work in your favor...

So based on my research this is only true for 'like' items.... if X and Y neighbors have Z feature against the rule, then I can have the same Z feature. The big one in the neighborhood is fencing. A lot of people have chain link dog runs and fences which the covenants strictly prohibit (per covenenats, must be no more than 6ft tall and be made of vertical plank style wood, finished, and no fence can be erected without 'Design Committee Review'). No one in the neighborhood cares though and the developer clearly hasnt made a stink about it.

Unfortunately there are no detached structures in my neighborhood yet. Multiple neighbors are also interested in building but I am the guinea pig at the moment.

 

[readhead]

A precedence has already been set when the setbacks weren't enforced when your house was built. There may be even more examples in the area. He can't pick and choose what is enforced.

 

[Supergumby5000]

A president has already been set when the setbacks weren't enforced when your house was built. There may be even more examples in the area. He can't pick and choose what is enforced.

Good point!... I need to relook through all our documents but since our existing home already doesnt satisfy side lot line setbacks, maybe that allows me to disregard that portion of the covenants? Or maybe an exception was made during construction?

If that is true than my only issue would be the rear lot line. I'll have to dig into that!

 

[lakeroadster]

A precedence has already been set when the setbacks weren't enforced when your house was built. There may be even more examples in the area. He can't pick and choose what is enforced.

Sure he can, if he is the Design Committee.. that's exactly why it is worded that way in the covenants.

The Design Committee looks at each individual case separately and evaluate it based on it's merit. And that makes sense.

Example: If the setback is 25 ft, and one owner's lot is such that they give a variance for 20 ft, that doesn't mean it applies to everyone.

The ONLY restrictions I have are in regards to the neighborhood covenants, which were written by the investor who bought a huge plot of land and built a bunch of homes. Pretty much every covenant is EXTREMELY strict but is followed with the generic phrase 'unless Design Committee approval is received". Design Committee = the investor/developer (not an actual design committee).

 

[rslaback]

I think one of the things that you might be missing is that you need to think like a developer. One of the main stays in real estate is to make sure that you don't unintentionally limit your market. To you (and maybe even to your neighbors) a 36x48x12 building isn't obtrusive. Heck, your developer might not even mind living next to that. However, he needs to think not about you, or your neighbors or even what he wants. He needs to think about if the next potential lot buyer would care. No offense to you but there is plenty of land in the world and your neighborhood doesn't look like anything special. Keep in mind also that as was mentioned above with X,Y and Z, you building a building like you mentioned might get mentioned by a realtor or client as a possibility all the way on the other side of the neighborhood. In other words, even if you were to buy all the land around you, the Jones family on the other side of the development could likely put up a similar structure if they wanted which means your shed potentially affects the value of the lot next to the Jones family as well. A smart developer will realize this.

In terms of fighting the covenant, likely it would be a huge money pit and you're not likely to win. Work with the developer and within the system. If an agreement can't be made you are better off to cut your losses and move.

When my wife and I purchased our current house one of the things I wanted before we ever scheduled visits to homes was a copy of the covenants.

 

[gungatim]

I think rslaback's post above makes a great point.

see what you can do to help him out. what's he looking for? is he having a hard time selling? maybe you can find a way to make his remaining land more profitable, easier to sell, whatever...but think instead of trying to come up with a win-win...you mentioned water, is there some way to help with that?

what's the easement for specifically?

 

[crewchief888]

i'm no lawyer,
but since the devoloper/builder already violated his own covenants, i'd think that would be something that would be brought up in court if push comes to shove and he rejects your request for a variance.

 

[Trey T]

It depends on how the rules are written to determine which set of rules supersede what, the Restrictive Covenant or County rules.

To me, it sounds like the setback requirements is regulated by the county and not the RC. If you're concerning about location of the new garage, I would check with the county first, not the Design Committee.

 

[pcmeiners]

"Call the county to see if you have to abide by the developer's covenants."

Common law... If the covenants were written/agreed to, the state can not modify what is in the contract unless the agreed upon articles go against state/federal laws. Your out of luck.
If the developer did not have the adjacent piece of land he needs to sell, you would be in a better position for getting around the contract's enforcement . He may be lenient as to enforcement at times, but he go to court and enforce the agreements anytime he desires, he will win every time. Pray he is already rich and wants to dump the land .


Example...
In Montauk Long Island there is a large shore line piece of land. In the 1700s a guy left the land to be used for public used, never to be developed. Over the years lawyers have tried to break his wishes, as it is worth a fortune to developers, but it will remain undeveloped as it was stipulated in his will, basically the stipulation were automatically added to the title of the land, just as the stipulations you agreed to go along with the title.

 

[SH7mi]

We have a list of covenants in our community as well. We signed them in 1998, ours also had a duration of time attached to them. I think it was 10 years, at which point our HOA (which you do not have) was to meet and re vote on whether or not to keep them or change them. You may want to read the fine print on your covenants to see if they have a statute of limitations attached.

 

[mudflap]

Is there going to be a beer fridge in the shop, and a TV to watch NHRA on Sunday nights..? If so.....you can build your shop IN..my back yard..as long as it is set back at least 20ft from my house....thats as far as my Wife will go to look for me......lol I have an attached garage...it's a real bummer sometimes...i can lock the door..but she has the extra garage door opener.....

 

[driftpin]

At some point your development may be turned over to the HOA, and the developer becomes a non-issue. You need to discover at what point control goes to the HOA. Unfortunately, it only takes one stickler on the HOA to make it very difficult to overturn the developer's covenants, once community control passes to the HOA.

If control does revert to the HOA, then it's possible a simple majority may allow the covenants to be changed. You need to see what the HOA docs say.

While it's OK to say that the county land development codes allow your proposed setbacks, the generous side and rear setbacks are there to protect the 'open nature' of the parcels, and the development thereon. As you are aware, the current land development regulations, your covenants, will not allow your construction.

Ask him about the price for the contiguous parcel. If it's too-much for you to pay, then you can concentrate on the alternative of seeking development with the covenants in-place, and trying to seek relief from them being enforced.

Let's say you cannot afford to purchase the additional lot and develop your parcel with a shop too. Then you could try to get relief from the covenant. The placement of your proposed shop might be better-received if you didn't try to have the footprint almost entirely within the setback. Go for a lesser amount of encroachment.

The issue of someone building a fence higher than allowed for instance, doesn't really impact your setbacks. It's not 'kind for kind.' If you showed several outbuildings of permanent construction already violated the covenants, then you might have a case for 'non-enforcement,' but anything involving in-place regulations is likely going to be expensive. Variances are another way to go, but here in Florida, the cities usually charge a considerable up-front fee just to file, and there is no guarantee that your variance would be granted. If you did choose to go that route, I think asking for less of a encroachment into the required setbacks would probably have a better chance of being successful.

I have worked as a municipal planner, and a zoning plans examiner, dealing with these types of issues daily. You have a lot of work to do, but I suggest you ask the price of that lot, and go from there.

Do you have any easements for the electric company, gas company, drainage district, future roadways, egress to landlocked parcels, or other things which should show-up on your sealed survey? if you do, don't place any part of your proposed structure into them. That is normally very foolish to do, because if they need access to where you built, they just demolish whatever you built in their easement and they are not responsible for rebuilding your structure!

 

[kd3pc]

covenants and deed restrictions may or may not be pinned to an HOA/POA. Many are stand alone and the law stands aside for them. State, local laws will dictate how and if they stand. The developers actions have little to do with them, as they are attached to the deed of the individual lots AND to the sub division/development if there was one.

You will have an uphill battle trying to fight them.

best check with a local RE attorney.

 

[Muzzy]

Y'all make it sound like im trying to put up a 20,000 sq ft airplane hanger I was hoping for something along the lines of a 36x48 or similar, with similar height to my home. That would mean no more than 12ft walls.

36' x 48' is a big outbuilding for suburban life in the lower 48.
If I were your potential neighbor buying the lot next door, I would be concerned that you were running a business out of it. Even if you weren't the next guy might be. That definitely affects my opinion on buying the house next door.

 

[johninct]

To me, if you have well/septic, your lot looks too small to even think of putting up a garage. You need so many feet clear around of your well , you need room for your septic system and you need a reserve area for septic system expansion. Plot that on a map. plot your required setbacks and covenant setbacks and then see what is left.

 

[ard]

I am pretty familiar with CA law, but not Alaska...

California will not allow a covenant to be placed on a property unless it has the logical/legal ability to survive indefinitely.

What this means is that if there is a 'design committee', there must be a legal vehicle for this committee to exist and perpetuate itself. Typically there is an HOA, that maintains a DC (or ACC or ARC). The HOA is elected by owners...it is usually controlled entirely by the builder at first.

How is the DC organized? What is the legal basis in Alaskan law?

When I joined my HOA, I was able to figure out how to get a majority of owners on the board, due to the developer making a mistake- then we had control of our community. I suggest you take a really detailed look at how the DC is comprised, and if it is even legal!