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Thread: Amending covenants, conditions & restrictions (CC&R) in Utah

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    Amending covenants, conditions & restrictions (CC&R) in Utah

    I'm not sure if this is the right place to post this question since this is my first post to this forum. Please bear with me.

    I recently moved into a new home development in Southern Utah. The CC&Rs included an item stating that driveways in front of the RV pads were to be constructed of Grasscrete or Tuff Track type material (this is a plastic egg-crate type material placed under grass that can be driven over).

    Due to problems with this material, the developer and most homeowners, would like to ammend the CC&Rs to allow for concrete driveways in front of the RV pads.

    The current CC&Rs do not address (in writing) the issue of how to pass ammendments. Due to this fact, the developer is stating that they would need 100% approval by the homeowners to made any changes. Currently, one party is not willing to agree to ammend.

    I'm just wondering if anyone knows if the developer is correct in assuming that 100% agreement would be required to ammend the current CC&Rs.

  2. #2
    Cyburbian nerudite's avatar
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    There are a few people from Utah here on the boards, so maybe they will know the answer. In the meantime, you may want to check the Condominium Ownership Act. If you have an online court case database in Utah, I'd do a quick search there to see if there have been any decisions on the matter as well.

  3. #3
    These restrictions are private, so the city or town has no "dog in the fight" as they say. In casual conversation, however, our planning attorney has commented that where no percentage is called out for amendment, then 100% is usually upheld by the courts. (It gets interesting if they are older covenants and there hasn't been enforcement of some provisions, but you seem to be describing current issues.) Good luck!
    Je suis Charlie

  4. #4
    Cyburbian
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    State law requires certain elements to be included in CC&R's, including a process to amend them and specifically a statement about the percentage of votes required to amend the bylaws. The state code is online here http://www.livepublish.le.state.ut.u...main-j.htm&2.0 if the link does not work, you are looking specifically at 57-8-16

    One way to avoid problems with CC&R's is require them to be submitted with the plat that is recorded and to be reviewed. We don't review them for the content of what you can and can't do, only to make sure they have all of the required elements of state law.

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    Thanks so much for the responces. Sounds like we're at the mercy of the one hold out.

    The developer is pretty motivated to make some kind of a change. Since the CC&Rs are not real clear, there may be a loop-hole on interpretation. Maybe we'll have to have the grasscrete or tuff track beneath the cement.

  6. #6
    Unfrozen Caveman Planner mendelman's avatar
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    Quote Originally posted by Hurricaner View post
    Thanks so much for the responces. Sounds like we're at the mercy of the one hold out.

    The developer is pretty motivated to make some kind of a change. Since the CC&Rs are not real clear, there may be a loop-hole on interpretation. Maybe we'll have to have the grasscrete or tuff track beneath the cement.
    Also, sounds like the developer sucks at developing CC&Rs. A "good" developer would not have put themselves in this situtation. I'd be more upset with the developer (assuming they created and instituted the CC&Rs) than the one hold-out property owner.
    I'm sorry. Is my bias showing?

    The ends can justify the means.

  7. #7
    Cyburbian
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    Quote Originally posted by Hurricaner View post
    Thanks so much for the responces. Sounds like we're at the mercy of the one hold out.

    The developer is pretty motivated to make some kind of a change. Since the CC&Rs are not real clear, there may be a loop-hole on interpretation. Maybe we'll have to have the grasscrete or tuff track beneath the cement.
    I would say that you have pretty good cause to require the developer to redo the cc&r's because technically they are illegal because they don't meet the minimum requirements of state law. The developer created this problem, and the city perpetuated it by not reviewing the CC&R's. There is a reason why 100% of the members should not be required, because no one would ever agree to an amendment. It would probably require hiring an attorney to do, but sometimes just talking to the developer will initiate the change.

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    Oh, believe me, I'm very dissatisfied with the developer. He has been very difficult to deal with on this, and a few other issues.

    In reading the Utah law, it states "The bylaws may provide for the following". It then goes on to list several items including the percentage of votes required to amend bylaws. My question is, since it uses the word "may", does that mean it's a requirement, or could it be construed as voluntarily included in the CC&Rs?

    I would love to be able to force the developer to rewrite the CC&Rs at this point. However, would it now take 100% approval to pass the new CC&R document?

    Thanks again for sharing so much information.

  9. #9
    In zoning parlance, *may* is permissive while *shall* is mandatory.

    How many units are sold, as a percentage of the development? Sometimes, CC&Rs don't kick in until a certain percentage is sold. You may want to look into that angle as well.
    Je suis Charlie

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    Just wanted to thank everyone for their comments and to update you on what I've been able to find out.

    I spoke with the City Attorney. He states that the city does review all CC&Rs for items that they may require. They do not, however, review for content other than items that the builder chooses to include. The example he used is, if the city says no basements would be allowed due to drainage issues, they would require that in the CC&Rs. They don't check to see if the builder includes anything else.

    The builder advised us (the buyers), at the time of purchase, that the tuff track was being used due to a city ordinance that states that no more than 2 driveways would be allowed on a lot and there must be 12' between them. The ordinance also states, a driveway cannot exceed 24' across. In speaking with the city, I have been advised that this ordinance (which is not enforced), while on there books, does not pertain to the area that our homes are in. Since we are in a special planned development zoning, the builder was not truthful in stating that we couldn't have cement in front of the RV pad due to CC&Rs and a city ordinance.

    I found this information quite interesting and wondered why the developer would even want to have the tuff track installed (especially since they hadn't used it in the first 6 phases of this development). Then, someone (who seems pretty credible) let slip that the developer has a development in another local town that was required to install this material due to drainage issues. To make a long story short, the developer is now a distributor of the tuff track material.

    I think the developer is going to have to come through or face legal action here.

  11. #11
    Cyburbian Emeritus Chet's avatar
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    First, I agree with the other comments that ou likely need 100% approval for any change to the CC&R's/ That said, I dont mean to be a puss, but if there is only one hold out, some times it is easier to break the rules than ask forgiveness. If someone violates this provision, it would be up to the 1 hold-out to convince the entire association to take correction / injunction action. (Or, bear the cost of correction / injunction action on his own).

    I'm not suggesting that this occurs, rather, that it is a negotiation tool to use against the hold out.

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    It's been quite awhile since I posted this thread. For some time the developer has been saying that they were, in fact, going to change the CC&Rs to allow for cement in the RV driveway. Now, all of a sudden, they're changing their story and saying that the attorney advised them that they could not change the CC&Rs. I'm assuming because of the one hold out. Looks like we'll need to get an attorney after all. Just wondered what we should be looking for, a real estate attorney or what?

  13. #13
    Cyburbian
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    My point about the state statute is that you can require more than the minimum state erquirements. You can certainly require some information in the bylaws. We do. Othere don't. but to avoid the situation that you are in, you need to amend your ordiannce to require a process to amend the by laws.

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    Cololi,

    I think I understand what you're saying. I have asked the developer if he is willing to look into amending the CC&Rs to require a certain percentage of votes to amend. All of a sudden, after speaking with his own attorney, he is taking a much more helpful stand. I'm still not sure that he plans to do anything about it but, I've advised him that we (homeowners) will seek council if necessary.

    My question is, what type of an attorney should we contact in regards to this matter? Also, where would I find the state law stating minimum requirements for the CC&Rs. I previously contacted the city but, they were not much help.

  15. #15
    Quote Originally posted by Hurricaner View post
    My question is, what type of an attorney should we contact in regards to this matter? Also, where would I find the state law stating minimum requirements for the CC&Rs. I previously contacted the city but, they were not much help.
    You probably want an attorney with knowledge of your state's contract laws, as the CC&R is a contract of sorts. Experience with land use law is important too, but contract primarily, IMO. State statutory requirements may be in the planning enabling legislation, or again, in contract law. (That's how we do it in Indiana: a smathering here, a sprinkling over there and a dollop over here so as to keep the attorneys and judges in business)

    Good luck!

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    Thanks for all the help!

  17. #17
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    Update...

    I met with an attorney last week and had him check out the current CC&Rs and especially the following item purtaining to driveways:

    DRIVEWAYS AND WALKWAYS: The driveway leading from the street to the garage, and walkways, shall be constructed of concrete, tile or brick pavers. Grasscrete or TuffTrack type material SHALL be used for the RV driveway. In no event shall a driveway or walkway be constructed of dirt, sand, clay, road base material or asphalt.

    According to the attorney, I may be able to get around this issue by dropping the tuff track about 3" down and pouring my cement driveway over the tuff track. Since the CC&Rs don't stipulate what material should be used on top of the tufftrack, looks like I may have a loophole to use. I also checked with the city for any opposition. They didn't have a problem with my having a cement driveway.

    I called the saleman at the developers office and advised him that I'd be pouring a cement driveway over the tufftrack. He made a few comments to the effect that this might not work out in my favor.

    At this point, I think it's worth a try. Any comments?

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