Anyone know anything about Covenants?

[GrantDawg]

I just received a "friendly" little reminder on my mailbox to "please comply with covenants." On it is a copy of a covenant page with highlighted a little line that says "Any air conditioning window unit shall be installed so that the unit is hidden from any view from the street."

I have my office in the bonus room above the garage. It does not take much heat outside before it gets very hot up here. Right after we moved in we explored all the options to cool this room. The best and most affordable was a window unit (even though I hated the idea of having one in the front of the house. It was really the only solution). So I purchased one, and this is what the little note was about (almost two years after the fact, but I digress).

The problem with this little warning is that the page copied was not in the covenant I signed. I have a copy of our covenant and it is nowhere to be found. As a matter of fact, I checked my covenant thoroughly before I went to purchase this unit and it was not in there. We were one of the early purchasers in the subdivision, so my guess is this line was added after we purchased our home.

So my question is, does the builder or anyone else have any legal recourse to force me to remove my window unit? If they do it will effective make my large bonus room a closet because there is no way I can afford to re-duct and buy a large unit just for it. Also, does anyone know of another affordable option to cool an up-stairs room? Even if I don't have to remove this unit, I would love to get rid of it.

[Samdari]

I cannot speak to the legal ramifications, and whether or not you are required to comply with changes made to the covenants after you sign, or after you make the 'illegal' changes to your home.

I will mention this - taking legal action requires money. HA's tend to collect just enough to cover their budgeted expenses for whatever services they provide. There is little left for securing counsel to pursue legal action. They depend largely on pressure from neighbors to keep members in compliance - move the AC unit or be the scourge of the neighborhood.

My guess here would actually be that the new rule about non-visible AC units was made in response to you putting yours in. Since they are unlikely (IMO) to pursue legal action, it does not really matter whether you are legally required to comply with the new rule. The neighborhood pressure tactic is applicable whether or not their position is legally enforceable.

[digamma]

You should check your covenants to see what provisions, if any, there are about amendments to the covenants--how they can be proposed, passed, when and if they can take effect, if they are retroactive, etc.

[vex]

Cover it up when you're not using it

[WSUCougar]

Well, see, there was thing called the Ark of the Covenant, and then this guy named Indiana Jones stole it from the Nazis after surviving a bunch of snakes and...oh, never mind.

[John Galt]

Originally Posted by digamma

You should check your covenants to see what provisions, if any, there are about amendments to the covenants--how they can be proposed, passed, when and if they can take effect, if they are retroactive, etc.

That would be my suggestion as well. There would also be a question of what the default rule is in Georgia about amendments to community covenants.

[sachmo71]

"But this...this is history."

[GrantDawg]

Originally Posted by Samdari

My guess here would actually be that the new rule about non-visible AC units was made in response to you putting yours in. Since they are unlikely (IMO) to pursue legal action, it does not really matter whether you are legally required to comply with the new rule. The neighborhood pressure tactic is applicable whether or not their position is legally enforceable.

Well, I was one, but I wasn't the first (more like the third) and not the last. Basically, everyone in this subdivision that has a bonus unit has one.

[GrantDawg]

Originally Posted by digamma

You should check your covenants to see what provisions, if any, there are about amendments to the covenants--how they can be proposed, passed, when and if they can take effect, if they are retroactive, etc.

There is nothing in the covenant about adding to or admending the covenant except that is court strikes down one part, the rest is still effective.

By the way, we do not have a HA at all. The covenant was made with the builder only.

[GrantDawg]

Originally Posted by John Galt

That would be my suggestion as well. There would also be a question of what the default rule is in Georgia about amendments to community covenants.

Where can I find that?

[GrantDawg]

Nevermind. Found the law:

(4) Notwithstanding any other provision of this Code section or of any covenants with respect to the land, no change in the covenants which imposes a greater restriction on the use or development of the land will be enforced unless agreed to in writing by the owner of the affected property at the time such change is made. Georgia code 44-5-60.

[albionmoonlight]

Sweet. Now tell them that you will agree to remove it for . . . [Dr. Evil Voice] One MILLION Dollars. [/Dr. Evil Voice]

[Tekneek]

Heh. Kindly inform them, in written form if possible, of the legal position you are taking and see what happens next. I know someone who refused to comply and the noise eventually went away. I've also read about people having serious legal problems from refusing to comply with their HOA.

When we moved into our house in July of 2001, the contract did not say there was no HOA, but merely that it had not been formed yet. Apparently everyone had that same notice on their contracts, but ignored it. The topic seems to come up every 6 months. Some of the people in here probably want one, but mostly everybody talks nervously about whether one will get started for a bit and forgets about it again. I dread the day when some activists move in and really try to get it organized.

[GrantDawg]

Originally Posted by Tekneek

Heh. Kindly inform them, in written form if possible, of the legal position you are taking and see what happens next. I know someone who refused to comply and the noise eventually went away. I've also read about people having serious legal problems from refusing to comply with their HOA.

When we moved into our house in July of 2001, the contract did not say there was no HOA, but merely that it had not been formed yet. Apparently everyone had that same notice on their contracts, but ignored it. The topic seems to come up every 6 months. Some of the people in here probably want one, but mostly everybody talks nervously about whether one will get started for a bit and forgets about it again. I dread the day when some activists move in and really try to get it organized.

That is the way mine is written, but remember the law. The HOA cannot take a more aggresive control on your home than is written out in the covenant. They can't for instance pass a rule saying "no yellow flowers" and make it affective unless you personally sign off on it. If there is nothing in your covenant about home colors, yard decorations, etc. (mine has none), then can't suddenly make restrictions on them.

[GrantDawg]

Dola: I hope someday we will have one, because eventially the builder is going to be finished and move on, and there is going to have to be some orginization to provide upkeep on the playgrounds and street lights in the subdivision.

[mgadfly]

Originally Posted by GrantDawg

That is the way mine is written, but remember the law. The HOA cannot take a more aggresive control on your home than is written out in the covenant. They can't for instance pass a rule saying "no yellow flowers" and make it affective unless you personally sign off on it. If there is nothing in your covenant about home colors, yard decorations, etc. (mine has none), then can't suddenly make restrictions on them.

It's been awhile since I took property law, but if I remember correctly, HOA rules are not the same as covenants. The law quoted above deals with covenants being added, not governmental restrictions on property use. I wouldn't be surprised if the HOA could come in and pass a restriction on home colors, etc...

[BigJohn&TheLions]

Paint it gold and hang wind chimes from it.

[GrantDawg]

Originally Posted by mgadfly

It's been awhile since I took property law, but if I remember correctly, HOA rules are not the same as covenants. The law quoted above deals with covenants being added, not governmental restrictions on property use. I wouldn't be surprised if the HOA could come in and pass a restriction on home colors, etc...

HOA are not a part of the government. That would be a Zoning board, and they can pass laws.

[GrantDawg]

or not pass laws, but "interpret legal restrictions" which are basically the same thing.

[mgadfly]

Originally Posted by GrantDawg

HOA are not a part of the government. That would be a Zoning board, and they can pass laws.

Are you sure? I'm not going to argue (because I'm not positive), but I seem to recall that (possibly depending on the state) the source of power that gives authority to HOAs are usually the same that grant power to any state municipality. I do know that in some states HOA's have the authority to levy local taxes. I also seem to recall that different states have different attitudes toward the authority of neighbors to force you into an HOA. (Some states allow home owners to just not join the HOA, even if everyone else in the neighborhood is part of it)

Because I'm too lazy to run a westlaw search or open up my old property outline, I could be way off (especially since a lot of this is probably state specific), but I thought an HOA has what amounts to governmental authority.

[Tekneek]

Originally Posted by GrantDawg

Dola: I hope someday we will have one, because eventially the builder is going to be finished and move on, and there is going to have to be some orginization to provide upkeep on the playgrounds and street lights in the subdivision.

No playgrounds here, but we do have streetlights. I've never seen one out, so I'm not sure who is taking care of that... I never thought about that before.

[Ben E Lou]

Originally Posted by GrantDawg

If there is nothing in your covenant about home colors, yard decorations, etc. (mine has none)...

Dang, and here I'd always had you figured for the pink flamingo type.

[JonInMiddleGA]

Originally Posted by GrantDawg

That is the way mine is written, but remember the law. The HOA cannot take a more aggresive control on your home than is written out in the covenant.

Strictly FWIW, I believe mdgadfly has raised a very good point.

I'm almost certain (after covering more than few HOA-related court fights over the years) that they do indeed operate under different rules/laws in Georgia than developer covenants, with the HOA's & similar groups holding much more power than what the convenant law describes for that category.

If you already know differently for sure & certain, then disregard this post. If you haven't checked & re-checked the matter with an attorney, then I'd strongly advise "better safe than sorry" as a guideline.

Just .02 from the peanut gallery,
Jon

[GrantDawg]

Originally Posted by JonInMiddleGA

Strictly FWIW, I believe mdgadfly has raised a very good point.

I'm almost certain (after covering more than few HOA-related court fights over the years) that they do indeed operate under different rules/laws in Georgia than developer covenants, with the HOA's & similar groups holding much more power than what the convenant law describes for that category.

If you already know differently for sure & certain, then disregard this post. If you haven't checked & re-checked the matter with an attorney, then I'd strongly advise "better safe than sorry" as a guideline.

Just .02 from the peanut gallery,
Jon

From what I understand from a RA friend, a HOA only has as much power as what is written in your original covenant. If your covenant gives them broad powers, then they can do just about anything. If the covenant doesn't, then they can't add new restrictions. My covenant would only allow a HOA to enforce the current covenant and arrange upkeep of "public areas." Nothing in there about installing new rules.

[Flasch186]

I work for a builder here in Florida so Im not sure if it is the same but when people sign the contract they're stating that they will be a part of and comply with the HOA and THEIR covenants. NOw until a certain number of peole live int he neighborhood, usually based on a % of occupancy, the developer maintains the HOA, sometimes on their own or by hiring a CPM/Prop. mgr. Until that % is met you basically live ina dictatorship cuz their isnt enough people to meet quorom. If I were you i would simply start nice and ask to see the minutes of the meeting where the issue was raised and passed. They may say there wasnt one and then you can press them further on when the issue was passed. Unfortunately somewhere in your HOA it might say something about necessary % to pass a measure...so you could check that but another unfortunate thing is that a few powermongers on an HOA will make the shit up. Also check your builders contract to see if the HOA can fine you or lien your home, in Florida they can. Or at least they could, keep in mind most of these people live around you and would rather not be dicks if they dont have to. Im sure their concern relies on "curb appeal" and that their prop value is affected by the "unsightly" ac unit. Something to consider is their POV and that it may be legitimate if you see any for sale signs in the area. If you fight it long enough there are a few things that could happen....1. constant badgering thus making your life less then perfect in the neighborhood. 2. it goes away and youre just not invited to more parties. 3. they pass more rules specifically aimed at you and your home, although anything unconcionable (sp?) you could fight. 4. Also if youre a minority you have more rights in this dept. as federal guidelines apply to HOA on race issues moreso than anything else not quite as tightly effected as during the process of buying a home though. 5. in Florida, they could fine you as well 6. Liens on extremely rare occasions, ie. a person allowing a home to become almost unlivable. i hope this helps.

[mgadfly]

Originally Posted by GrantDawg

From what I understand from a RA friend, a HOA only has as much power as what is written in your original covenant. If your covenant gives them broad powers, then they can do just about anything. If the covenant doesn't, then they can't add new restrictions. My covenant would only allow a HOA to enforce the current covenant and arrange upkeep of "public areas." Nothing in there about installing new rules.

Once again, I'd like to start off with the general warning that property law is not an area that I am all that comfortable with, but ...

I think generally speaking if an HOA is formed after you own the property and you join it, you waive your rights to be held to only the original restrictive covenants and agree to be subject to them AND the bylaws of the newly formed HOA.

I'm not sure if I'm explaining it well, but I believe that in most states if you join the HOA, you now have to play by their rules. And as I said before, different states have different laws about what happens when or if you don't want to join the HOA.

My father-in-law has this ongoing feud with his HOA, and I am intentionally trying not to learn very much about it because I personally believe it is a waste of time. I suggested to him that he remove his new mail box (that was put in in such a way that somehow upset some neighbors) and apologize to everyone. Then run for head of the HOA next time there is an election. He's a very popular guy in his neighborhood, just retired, and I think he has a good shot at winning an election.

However, Georgia law may be different, and maybe they have a statute that limits HOA authority, even when a homeowner decides to join their association.

I have a friend who is a property attorney, if I see her sometime this week I'll ask her if I'm way off base. Probably am, and it wouldn't be the first time.

[GrantDawg]

Originally Posted by mgadfly

I think generally speaking if an HOA is formed after you own the property and you join it, you waive your rights to be held to only the original restrictive covenants and agree to be subject to them AND the bylaws of the newly formed HOA.

Now I get that. If I join one, then I'm fair game. My covenant doesn't have an agreement to join one, just a lot of "if one is formed." I'll make sure not to join it.