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Pitfalls for Property Owners in Homeowners Associationsby Jonathan G. HigieImagine that you have recently purchased and self-constructed a very attractive storage shed for your back yard. The shed cannot be seen from the road and is generally hidden from view of your neighbors. The following day you are visited by your neighbor (who is the Homeowners Association President) and you are told to remove the shed or face severe fines. He points you to page 22, Section (b)(i) of your plan's Declaration stating "no storage sheds shall be erected on any lot." From a legal perspective, the storage shed likely must be removed. Over the past thirty years in growing areas, as many as 80 per cent of suburban houses that have been constructed are, in one form or another, subject to rules, regulations and restrictions of a Planned Community. These go well beyond the restrictions of set-back lines, cost, square feet, etc. in zoning or the older restrictive covenants imposed by developers. In many cases, the purchasers of these homes are fully aware of all of the restrictions placed on their properties; however, in just as many, the owners are unaware of them until they are denied the right to do something with their property that they would be able to do had they not lived in a Planned Community. How can you know if your property is subject to such restrictions, and what must you do if it is? In most, there is a clause in your deed that states that the property is, "under and subject to the restrictions set forth in the document recorded at _____". The legal effect of this clause is to make the buyer aware of the existence of the restrictions and to bind the buyer to compliance. Practically, however, many buyers do not carefully review their deed and, even if they do, do not then take the time to obtain a copy of the restrictions. However, since 1997, the Pennsylvania Uniform Planned Community Act requires that Homeowners Associations provide each buyer with a packet of information which will include any and all property restrictions of the community. While this requirement has improved the "notice" element to the buyer, many buyers do not take the time to review the packet and carefully read the restrictions. The contents of these restrictive covenants can be very important and, in some cases, may have clauses which severely restrict your ability to use the property. In addition to storage sheds, the restrictions may prohibit some exterior improvements, using driveways for parking boats or recreational vehicles, and even what colors and/or exterior materials can be used for the home. Limitations on planting, sounds, recreational and other uses, etc., may be included. As long as these restrictions are recorded in the Recorder of Deeds Office, and are sufficiently specific, they will be legally enforceable by not only the Homeowners Association but also by the other individual owners of property in the plan. Violation of these covenants can result in fines and the removal of any unapproved improvements. In order to avoid the "errant shed" we spoke of at the beginning of this article, purchasers of homes or unimproved lots in a subdivision plan should carefully review all documents which may restrict their ability to use the property because the adage "buyer beware" applies very strongly to these restrictions. |
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