Garage, meet thy doom: Court backs deed restrictions

Lexington Herald-Leader ^ | Wed, Dec. 10, 2003 | Cheryl Truman

[toddst]

The $70,000 garage at Lexington's Stonewall Equestrian Estates must come down, the Court of Appeals has ruled.

That's the latest in a long-running battle between the neighborhood association and Carolyn and Don Colliver, who built the all-brick garage.

Nobody claims it isn't well-built.

Nobody disputes that the Collivers, who lived in neighboring Stonewall for 30 years, have put about $110,000 of improvements into their $265,000 house at Stonewall Equestrian, not including the garage.

Nobody disputes that the argument has gone on too long: The Collivers broke ground for their garage more than three years ago.

What has been hotly disputed is whether the deed restrictions for Stonewall Equestrian Estates -- a small neighborhood in south Lexington with large lots and lots of common space -- allowed the Collivers to build that mondo detached garage. Fayette Circuit Judge John Adams ruled last year that the garage must be torn down. Now the Court of Appeals has agreed.

In fact, the court included some language that may make some homeowners sit up and read their deed restrictions: It notes that even if past enforcement of deed restrictions has been spotty, you disregard them at your own risk. Your "improvement" may be a sitting duck based on how vigorously your neighborhood chooses to enforce deed restrictions.

What that means is that your storage shed, pool, swingset, satellite dish, basketball hoop or fence is only as safe as a court's opinion of whether it has changed the character of your neighborhood. Buyers beware: You're giving up certain rights to your property when you move into a deed-restricted neighborhood.

What it also means is that if a $70,000 garage can be ordered to rubble, any lesser "improvement" can also be ordered trashed.

"Arbitrary enforcement of covenants does not necessarily render covenants unenforceable," the appeals ruling says. "Although the (Stonewall) covenants have not been strictly enforced in reference to pools and fences, we cannot say that a fundamental change in the neighborhood defeating the purpose of the covenants has occurred."

Carolyn Colliver says she and her husband are devastated by the ruling, but haven't given up hope that their garage will somehow be spared. The couple are considering their options.

But the appeals court had no sympathy with the Collivers, rejecting all the couple's arguments.

"They took an unwise risk and expended a large amount of money in spite of this litigation and the Association's clear disapproval of their garage," the appeals court wrote.

The lesson of this bitter fight is that deed restrictions don't lose force even if homeowners find them unclear and their enforcement selective. And if you don't believe it, just remember that $70,000 garage.

[countrydummy]

bump for later

[webstersII]

"Either you negotiate with your neighbors or ignore the temporary stuff, don't deliver your freedom into the
hands of others. "

I would be curious to see how you would deal with your life being disrupted by the losers that live across the street from us. They had kids with loud mufflers and unbelievably loud stereos who rev up their engines late at night (thankfully they moved out, finally). The other neighbor cranks up his loud car for about 15 minutes early in the morning to get it warmed up. This is aside from loud parties and such that go on until late hours.

It's hard to work a normal day-shift type job and not get waked up quite often by these people. I have talked very nicely with both of them, and they pretty much brushed me off. Other neighbors have been bothered by them even more than me. Their attitude seems to be that they can do whatever they want, whenever they want, and they don't really care.

I believe that this situation is at the other end of the extreme but this kind of stuff does happen. Maybe if you live around a bunch of losers the covenants do have some use. Having said that, I wouldn't want the "Block Captain" coming around bugging me about something stupid like a trash can being visible from the street.

[Libertarianize the GOP]

ping

[farmfriend]

Rights, farms, environment ping.

Let me know if you wish to be added or removed from this list.
I don't get offended if you want to be removed.

[CajunConservative]

It's no different with city government. For example, if you think you're the next Mrs. Field's and start out by baking your cookies at home you can expect a visit from the health department. But in our city it appears that if you drive a few streets south and open a roach coach in your driveway and serve burritos, no problem. Selective enforcement of the health code? Could be. Translation: the buddy system works, and life ain't fair. That's going to be true no matter where you live.

I had a catering business for a while and what was more aggravating was when it was the same health inspector that would overlook a gross infraction but not think twice about writing others up for it. It really chaps me too because my commercial kitchen had to be up on every code while other food establishments wouldn't be fit to serve animals.

[steve-b]

In fact, you should insist that the illegal clause be stricken from the paperwork -- if for no other reason than that it might be used to embarass you later.

[Mr. Jeeves]

If you can't build a mondo garage you don't really own your house.

No one in the United States really owns their house. The government owns all real estate in America, but allows us peons to buy and sell the rights to exercise a certain degree of control over real property, as long as the government rent (property tax) is paid. Fail to pay the rent, do something the government doesn't like, or happen to purchase control of a property that stands in the way of something the government wants to do, and you will find out very quickly who the real owner is.

What makes these covenanted communities even worse is that a board of busybodies also retains a certain degree of control over the property, leaving the "homeowner" with less control than he or she expected. Especially since the individual probably overpaid to buy control of a property in what he or she perceived to be a nicer (covenanted) neighborhood.

[editor-surveyor]

"Buyers beware: You're giving up certain rights to your property when you move into a deed-restricted neighborhood."

This is a fact. Those restrictions on your deed are a valid contract between you and your neighbors. This is not creeping socialism; it's the freedom to contract as protected in the Constitution. This is the basis of trusts also.

[Old Professer]

The property value of your home is only what it brings at sale; you're looking to inprove your comfort value; if you're scared, you need to move now before you're too old and sick to make it.

[RightWhale]

lots of common space

There's the problem. Community sharing. Just a taste of what communism, Chinese style, is all about. Rich people should be smarter.

[Old Professer]

If a Chevy Astro van is too big to fit in his garage, he was one small garage.

[Old Professer]

Sounds to me like a group of you rode roughshod over the others and now you're proud of your victory; if that is how it works, you better hope the losers don't talk a bunch of their like-minded friends into buying homes in your neighborhood and re-taaking the battlefield.

[AnAmericanMother]

I've been there, done that. You can get rid of obnoxious neighbors on your own, with resort to (1) nuisance law (2) the police (3) Animal Control (4) any landlords or lenders involved. Our next door neighbors were married (but not to each other), had a blended family of about five filthy little kids with lice and serious need of orthodontic work, the guy worked for a towing company and cashed his paycheck at the liquor store on Friday nights. I found a 10" butcher knife on the curb one Sunday morning, asked one of the kids, "Is this yours?" and he answered, "oh, yeah, Mama was chasing Daddy with that last night" as though that were the most natural thing in the world.

All the neighbors told the landlord we were going to sue him for maintaining a nuisance if he didn't evict that Tobacco Road gang. He did it in a heartbeat (I suspect they weren't paying their rent anyhow.)

And if you give power to a Home Owners Association it will jump up and bite you EVERY time. The kind of folks who have the time on their hands to run such an organization are also the kind of folks who will nitpick you to death over open garage doors, lawn not raked, wrong kind of mailbox, etc. etc. etc. Given the power, they ALWAYS abuse it.

[AnAmericanMother]

You know what? You bluffed your way through that one.

A homeowner's association formed "after the fact" has NO power over landowners who do not choose to participate. The junky neighbors just didn't know that.

[toddst]

What makes these covenanted communities even worse is that a board of busybodies also retains a certain degree of control over the property, leaving the "homeowner" with less control than he or she expected. Especially since the individual probably overpaid to buy control of a property in what he or she perceived to be a nicer (covenanted) neighborhood.

I don't agree with you that restricted communities are worse because of HOA board control. In reality, these communities are no different than our municipal government having councilmembers.

In fact, I would like to participate in a gated community that is located adjacent to our city but actually not part of it, so we could contract for services we want - and exclude those we don't (including eliminating the taxes supporting what we don't want.)

I'm very tired of the crime pressure we are experiencing while paying for police services from which I don't really benefit, as an example. I would rather privately contract for refuse collection, as opposed to having the city run trash pickup and charge me more than the service should cost. The list goes on.

[Space Wrangler]

We didn't ride roughshod over anyone. All we did was enforced the reasonable restrictions that were already in place. The law was on our side, period. And none of the small minority of people who had to clean up their act were members of the HOA. The deeds they signed on their properties had the restrictions in black and white, and by their purchase they agreed to abide by them. The HOA gave us the grounds to organize and use our local codes enforcement dept. to enforce the codes (imagine that!).

And as for dealing with the junkers, live next to some of these people who mow their lawns once a month and leave untility trailers and cars sitting by the street and watch you property values plummet and then tell me how you feel. The HOA came about because of four or five hard cases in the neighborhood. They knew the restrictions, and openly flouted them. Two have since moved, and that's just fine with us. If you don't like restrictions, don't move into a neighborhood that has them. It really is that simple. Also don't expect to ignore them and think nobody can do anything to you on "your own land".

And btw, several less egregrious violations have been ignored, and we have no plans on doing anything about them. We formed our HOA as a last resort, and as a means to keep a few bad apples from hurting our property values.

[Space Wrangler]

The HOA was formed 'after the fact', but the restrictions were on the deeds they signed and by law they had to abide by them. Two of them tried that trick, but alas, it was not to be. They actually had to comply with the restrictions that were established when the neighborhood was developed.

[Old Professer]

That is a much better explication than the post to which I responded; go back and read your earlier post, you made it sound as though you organized a neighborhood association after the fact.

[knak]

We were trting to buy a house earlier this year. Found a repo home in Idaho that was just beautiful. And cheap. It was one of those with a marble fireplace, cedar great room with a loft. Looked perfect. The realtor told me on three occasions that there were no CC&R's. When he wanted the earnest money I asked for proof of that because we needed to build a shop on the acreage and wanted horses and a barn and so forth. He put a lot of pressure on us to get us to send the ckeck saying he'd get the proof, just waiting on something and stalling....waiting for my check.

When I told him no proof, no check, he finally came clean and informed us that we couldn't even paint the house without prior approval of the color from the neighborhood association. Couldn't build anything else on the property, no horses, nothing. What a liar. Check and don't give them anything till you know everything.

[Space Wrangler]

but we formed one on our neighborhood because there were so many people just completely ignoring the restrictions ~from my post 60

That would indicate that the restrictions were in place before we formed the HOA, but maybe not as clearly as it should have been.

I've heard the horror stories too, and like I said, there are people in this world who are miserable and get their only joy out of life by making others miserable, and many times these people LIVE for serving on HOA boards. We let many lesser infractions go, and agreed that we wouldn't seek any remedies from the people who had done things that really didn't affect property values. As an example, my next door neighbor had run an aerial power line to his outbuilding. The restrictions state that all cable, utility,etc, lines must be underground. It was behind his house, and basically hidden by the trees, so we let that one go. We formed to get the junkers to clean up their act. I am on the board, and refuse to let the board bully people or let personal vendetta's enter the fray. The other four members and myself were all re-elected last term with 90%-plus of the vote. And don't get me wrong, we've had several people complaining about petty BS that their neighbors have done, and we basically tell them to go pound sand. As long as someone doesn't park a car in their yard and let grass grow from under it, you don't have to worry about us.