Posts tagged ‘CC&Rs’
I can't park my car in front of my house?!
I’ve often had the duty of contacting unsuspecting homeowners to advise them of various matters related to their homes – and what they can and can’t do on their property – and my contact almost always comes as a surprise.
I’ve had to ask folks that they ‘cease and desist’ parking their car(s) on the street in front of their home on a regular basis…or that they must paint their playset in the back yard a different color…or that they must remove a fence constructed without prior permission from the governing homeowner association committee.
Homeowners are generally surprised to hear from me because they weren’t aware of the details involved in the various restrictions governing the use of their property. Many residential developments – often referred to as subdivisions – place restrictions on the use owners can make of their property. The restrictions, called restrictive covenants, are typically put in place by the developer of the community, and apply to all of the homes located within it.
The restrictive covenants are designed to maintain continuity, consistency and market price valuation in a community, and they often serve valid purposes and aren’t too terribly onerous to follow. But if you don’t know what the rules – the restrictions – are, then restrictions can become very frustrating and perhaps even lead to great expense on the part of the homeowner (e.g. a homeowner spends thousands of dollars constructing a fence only to be ordered by the court – after the additional expense of a legal battle – to remove the fence, all because he/she didn’t seek permission from the ‘architectural committee’ prior to construction).
The written document setting out all of the restrictions is typically referred to as the Declaration of Covenants, Conditions and Restrictions, or the ‘Declaration’ or ‘CC&Rs’ for short. It’s usually a very long document, written by attorneys, and much of such a document probably contains a lot of legalese and not a lot of plain English.
To be legally enforceable and effective, the Declaration is recorded in the Register of Deeds office (at least in the state of Tennessee), for the county where the property in question lies. Every deed for every piece of property in a development that is subject to a Declaration will reference the Declaration by book and page or instrument number, which is how legal notice is given to a property owner that his/her property is subject to the Declaration.
Based on my experience, most folks don’t take the time to look over the Declaration when considering the purchase of a home. And if they do, it’s after they’ve bought the house and are now subject to whatever restrictions may exist. Why does this matter? I think most of us want to know what ‘rules’ may affect what we can do with, in and to our homes. We want to understand what requires permission, and what is simply forbidden.
Restrictions can limit the number of cars that can be parked in your driveway or the street in front of your home – or prohibit them altogether. Restrictions can require items in your yard – such as a playset – to be a certain color. Restrictions can prohibit the construction of fences, swimming pools, hot tubs and other amenities.
Restrictions can also limit or prohibit you from renting your home. The presence of this kind of restriction is surprising a lot of folks right now, who may be moving to take a job (due to loss of an existing job) or who simply can’t afford the mortgage but also can’t afford to sell in the current real estate market. Renting is perhaps their best option, but only if the restrictive covenants governing their property permit it.
A new homeowner shouldn’t be seeing the Declaration and learning about restrictions the day of closing. When you’re shopping for a new home, ask your real estate agent about restrictive covenants if you’re seriously considering making an offer on a specific house. And ask questions if you don’t understand any of the language in the covenants. Without this information, you could be facing a frustrating – if not expensive – future when you learn that the fence you just had installed is prohibited and must be removed!
