Q: When I bought my house in Union County in 2010, I was told the homeowners’ association (HOA) for my community wasn’t a “legal” HOA and had no authority to enforce the covenants, conditions and restrictions (CCRs). I am building an addition now and the HOA is asking my contractor for information on the project. How do I find out if it has the authority to govern additions or changes to my house and lot?
A: You cannot always depend on what a sales agent or someone else tells you about the restrictive covenants. What matters is whether the CCRs you refer to were put on public record before lots were sold and homes were built in your community.
If so, the next question is whether your specific lot is covered by the CCRs. Finally, an additional inquiry is whether the CCRs contain architectural-control provisions that allow the HOA or an architectural-control committee to govern additions or changes to your house and lot.
You need to get a copy of the CCRs. Ask an officer of the HOA for one or obtain a copy from the county’s register of deeds office. The CCRs should contain a description of the land that is covered by the CCRs, but whether your lot is included within the description is not always easy to determine.
The description can take several forms. It may refer to a recorded plat or plats (found in the register of deeds office). It may also be a more complicated “metes and bounds” description, which is often a long, cryptic paragraph of text that, if plotted by a surveyor, will reflect the boundaries of a parcel of land. In either case, you will likely need the help of an experienced real estate lawyer to determine whether your lot is subject to the CCRs.
Another complicating factor is that subdivisions are often developed in phases. As the developer begins work on a new phase, a supplement to the declaration will be recorded to bring the new phase under the governance of the original CCRs. If your lot is not included in the land described in the original declaration, there may be a later supplemental declaration that covers it.
If you determine that your lot is subject to the CCRs, a careful review of the CCRs themselves should tell you exactly what functions the HOA is responsible for and the extent of its authority. If your HOA is incorporated as a nonprofit corporation (as most are), the HOA’s bylaws should provide additional guidance on the HOA’s governance and the duties and authority of the HOA board members and officers.
Many CCRs require owners to submit plans and obtain approval from the HOA board or an architectural committee for changes to a lot or home. That ensures that homes maintain a consistent appearance and that owners do not make changes that are incompatible with the developer’s vision for the community or which adversely affect other homes or common areas. This helps ensure the attractiveness (and property values) of all homes in the community.
If your CCRs do not require pre-approval of changes and additions to your home, then the HOA cannot require you to submit plans or answer questions regarding your project. However, there may be other restrictions in the CCRs that address items such as the permitted types and colors of exterior cladding, the roof pitch, square footage, outbuildings and fences. You may want to find an experienced real-estate lawyer if you have difficulty interpreting the CCRs.