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Can unenforced deed restrictions be made to stick later?

Phil Elliott

Member
Messages
1
Points
0
I live in a subdivion that has acreage homesites and is not in the city limits. I have 2 contiguous lots that together comprise approx. 4 acres. I want to erect a metal workshop to pursue my hobby of restoring old trucks. My HOA is saying 1) I must replatt the 2 lots together as one since the shop will be on the "other" lot, i.e. the one my house is NOT on and 2) I must provide 75% masonry on the shop building. They have not enforced these restrictions before and there are, in fact, 5 metal buildings in my subdivion that are on lots seperate from the main residence and have no masonry. Some were approved by the ACC, some were put up without approval. In all cases, the HOA says those were approved by the "old" HOA Board/ACC (controlled by the developer) and therefore are "grandfathered". But the CC&Rs are the same as were in effect when those buildings were erected. No new restrictions have been passed or any changes made to the CC&Rs since they were filed in 1989.

I am willing to work with them on a compromise where I would use some different materials, landscaping, etc, but they have refused to bend on their requirements. I don't want to be a "bad neighbor" but I feel like I am being discriminated against by the HOA, which is prohibited in our CC&Rs.

Can the HOA make these restictions stick if they have not enforced them in the past? Is there such a thing as "grandfathering" in this case where the CC&R document has not changed?

By the way I live in Texas if it makes any difference. Any advise appreciated.
 

Linden Smith

Cyburbian
Messages
141
Points
6
Thats an interesting problem. Sounds like it is destined to end up in court, and its hard to say just how a Texas judge will come down on that issue. It does hurt their chances at enforcement that there is a pattern of non-enforcement, but this is a private deed restriction, not law. The judge may not hold them to the same standards as he would a govenmental entity.

Try to make a deal with the neighbors, but if they won't make a deal, you are looking at getting a lawyer and fighting in court. The worst you could expect is what they ask for. The best is that you will piss off all your neighbors.
 
Messages
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Can you assist me with information on how and what limits of liability insurance a Homeowners Association should carry. I have yet to locate a company in Florida that will provide our association insurance. I should note that the Homeowners Association is only in place to maintain 7.2 miles of road which acessment fees are insufficient to cover and property owners are unwilling to have the fee increased.
 
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