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r/fuckHOA
r/fuckHOA
326
Posted by2 months ago

Could I preempt HOA creation by making my own restrictive covenants?

FHOA - this is hypothetical, for now.

Let's say I owned a piece of non-HOA land, which I believe would be desirable to a real estate developer at some point down the line.

Could I draft up my own restrictive covenants, that go with the land? Much like HOA membership.

Perhaps simply prohibiting any new covenants/HOAs from being attached to the land going forwards?

Or maybe something stipulating that any subsequent associations attempting to collect dues from property owner, owe the owner (or maybe some other org) triple any monies collected from this land?

Just kind of spitballing here - wondering if it's possible to prevent/obstruct an HOA from taking on a plot of land in the future.

45 comments
95% Upvoted
level 1

A restriction of that sort would violate the common-law “rule against perpetuities” and some or all state statutory embodiments of that common-law rule.

159
level 2

Isn't an HOA a kind of "rule of perpetuity"? Isn't conservation land?

107
level 2
Op · 2 mo. ago

Thanks

7
level 1

Might want to talk to your county folks. A lot of times developed properties such as what you are talking about. Have to go through theor approval process. Our neighbor got shut down. They wanted to sub divide 40 acres. State passed regulation requiring new roads to be 60' instead of 40'. Including easements etc. And their land ended up being on a road with too high of a grade to be subsidized. Would cost them thousands to adjust easements, utility poles etc. Just for reconsideration. Talk to a real estate lawyer. Or you could find yourself on the wrong end of lots of litigation.

25
level 1

This will only work if you have a bit of land but as an option...

Go down to your local planning office and ask about adding a "Conservation Easement" to your property. That should limit the ability for them to demand you develop it or really do anything with it.

There are pros and cons with adding easements to a property so I would be careful and not rush into any of them.

22
level 1

my dad bought a house a few years back where the previous owner had done a very similar thing. basically he paid to get one acre of the land of the lot split off into its own piece of property. he's in register the two pieces together as a subdivision and registered himself as the head of the homeowners association. however since he owned both pieces of property he was in control of if anyone purchased the piece of land. sure enough a few years after the previous owner had done this the street made its own HOA but his property was the only one not included because it was already part of an HOA... his own!! I don't know the rules in every state this was in Tennessee but it worked out well in this case.

12
level 1

You shouldn't need any sort of restrictive covenants to prevent this. In most cases, you can only be subject to the CC&Rs (the documents that create an HOA) if you bought property that was already subject to those CC&Rs or entered into a new agreement accepting CC&Rs. Many HOAs have tried to force outside properties into joining and paying dues, but those arguments are usually losers in courts.

You could draft your own restrictive covenants, but it is probably more desirable to a real estate developer to have your land free from restrictions. Plus, there are considerations of whether the restrictive covenants you want would violate other legal rules, like the rule against perpetuities (as mentioned above) or public policy.

8
level 2

Exactly. Depending on the land around the lot, there could be a community built next to or around it. But most developers like to keep everything together so it’s unlikely they’d build a whole community around a lot that isn’t a part of it. I wouldn’t be surprised though if one gets built right next to it.

4
level 1

You have to check with a lawyer if you want to try that.

I’d suggest a real estate lawyer, but that might not be quite the right speciality - but it’s closer than criminal defence or medical suits specialties, lol.

If the real estate lawyer isn’t sure, they should be able to point you towards the correct specialty, at least.

7
level 1

Love Canal was never a "canal" in any sense; it was an area where multiple companies and gov't agencies dumped chemical wast. The company which owned the property (Hooker Chemical) was approached by the city of Niagra about buying the property.

Hooker repeated told the city the land was unfit for construction and they'd take great pains to isolate and contain the dumping ground as much as they could. (Notably, a later investigation showed the actions they took would meet today's EPA standards.) Still, the city insisted on getting the land.

Niagra told Hooker that if they didn't sell the city the land, then Niagra would just seize it under eminent domain. (The city was hungry for new land as part of the post WWII housing boom.)

Tie to this thread: Hooker decided to sell the land to the city for $1 and put in restrictive covenants against its development. They also put something in the restrictions saying that they were there in perpetuity and each subsequent owner had to be told about the hazardous waste there.

The city agreed, bought the property, then threw the covenants out the window. They began selling off the land and developers began trenching and building. Hooker was alarmed and sent lawyers to the city to protest about the construction, the deed restrictions, etc. -- all to no avail. Thus became what is known today as the "Love Canal Disaster".

6
level 2

That's wild

1
level 1

Who will enforce your covenants? HOA's work because the HOA enforces the covenants. In your case, you are the only one who might enforce the covenants; the municipality will not.

5
level 2

I think the point is more that you can't be forced into joining an HoA if you're already in one. So they want to make a dummy HoA that does nothing but block bullshit.

10
level 2
Op · 2 mo. ago

Basically just trying to prevent other HOAs from stepping in, little need of enforcement.

That said, one of the potential angles was to require them to pay back triple any dues they might connect to the property owner. The courts would enforce that via the same mechanisms HOAs use against homeowners (civil judgements and leins)

3
level 1

The way an HOA is formed is when all the land is owned by one company or person, they subdivide it into common areas and individual lots and attach deed restrictions tying it all together. So all of the homeowners are part owners of the common area and responsible for it, and the homeowners enforces the rules between each other. The HOA is "needed" because the city or county government doesn't want to be responsible for maintaining the storm drains, retention ponds, sidewalks, street lights, or sometime streets. They don't want to pay to maintain it because the tax revenue from the new development is already spent covering maintenance from older neighborhoods. And because the clean water act makes the state responsible for stormwater related pollution of the local government doesn't handle it. Raising taxes on everyone is unpopular politically when they can just shift the burden to newer homeowners.

So you can easily prevent an HOA from forming if you get a developer to build out the community and get the government to be responsible for maintaining the infrastructure going forward. The local government can use a mello roos or a special tax district, or just charge a sustainable amount of taxes to cover future maintenance. This isn't all that rare really, most developers don't care about the HOA as long as the local government will approve their building permits, lot subdivision, zoning changes.

On the legal side, a deed restriction can be changed if nearly all of the homeowners agree. So if you sell it as one big lot to a developer they can just remove the deed restriction entirely and create an HOA. If you divide up the land and only sell some of it it is still possible the developer buys out the other land, or pays them to vote to change the rule. So it needs to be in everyone's best interest for the status quo to be maintained. Another issue is the developer could just violate the restriction, unless one of the other owners takes them to court nothing happens. The city or county won't enforce deed restrictions generally. Or the developer could get the restriction removed through the courts if it goes against public policy. Consider what would happen if you divide the land into 24 plots for individual homes, 4 of the homes could have access to a public road, the other 20 need to share roads/driveways. But the deed restrictions say they can't be charged dues for road maintenance. In many cases the courts would remove the restriction so the road costs could be shared fairly.

If you succeed and prevent any future owner from creating an HOA but the the county won't allow for much home development without an HOA then the land is nearly worthless. So this accomplishes your goal, but then you no longer own a piece of desirable real estate unless you can address that.

3
level 1

Often times developers add an HOA out of necessity… there are common areas they built and know will need maintenance such as a road or driveway etc. because the city isn’t going to pay to build and maintain it.

So if your land needs any of these to build houses and you restrict HOAs from appearing then you limit the desirability of a developer to use your land.

If your concern is the Karen’s on the property then when you do sell one of your terms is that you keep a unit/ house and get to be the first HOA member/draft CCR to cover maintenance costs and nothing else.

3
level 2
Op · 2 mo. ago

I definitely thought about the desirability aspect of it, but the chunk of land is right in the middle of an older, sparsely developed neighborhood in a very high COL town.

I feel like a developer might be inclined to eat some loss to complete a neighborhood, and not have 2~4 homes worth of hole in the middle.

2
level 1

In the 1940s, when my grandparents bought the house in which my dad grew up, there was some kind of deed restriction from the former owner stating that my grandparents were not permitted to sell the house to any PoC. I don’t know if that was legal or enforceable, but I do know that restriction wasn’t permanently tied to the house or land since my grandparents didn’t renew it when they sold the house in the 70s.

2
level 2

The civil rights act of 1964 abolished deed restrictions such as what was included in your example. If the original seller had attempted to enforce that, they would have lost in court as it violates public policy.

13
level 2

It usually is permanently attached to the land... It doesn't have to be renewed. It's just there. However, those covenants are not enforceable since 1964, and I suppose some places probably remove them automatically these days.

2
level 1

Deed restrictions?

1
level 1

If you aren't already in an HOA (at least in the US), you don't need to worry. It isn't possible to be forced into one, after you already own the property.

There's only 2 ways for an HOA to get started. One is if a developer starts one for the homes they actually build. The other way is if someone else starts one, and convinces people to VOLUNTARILY join.

1