Deed restriction dilemma - need advice

Started by tightspot, April 17, 2013, 01:05:31 AM

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"Why are you so special that you figure you are due a personal exemption from a major rule?"

Carla -  I didn't say I was special, had a right to an exemption, or that the developer has an incentive to change the rule for me.  I would say he has an incentive not to change the rule. 

I was smart enough to read the rules before I made an offer.  It's the first thing I did, actually.   Read up.  I bought a $44k property for $10k.   If I can't make my structure work, I'll sell the property at a profit. 


To play devil's advocate here.

No one wants to buy land in an empty development.  People attract people.  The developers I know give away the first few lots of a development with contracts that the homeowner must build, or they give the land to a home builder with the contract for payment after the house sells and only for a portion of the sale price (joint venture).  Sometimes they build spec houses themselves with the hope that it will spur sales of lots and they can turn a profit on the house later.  If the developer has a large inventory of unsold lots in phase 3, it may be more compliant to make an exception.  It may give a letter that the porch qualifies for the intent of the deed restriction, if it gets you to build something.

If the developer has already sold many of the lots to large commercial real estate investors or knows the previous purchasers are complainers, the developer may be wary of opening itself up to possible litigation.

Also the amount of enforcement and deed controls may qualify the developer for special tax accounting rules.  An exception would not be highly likely if it is doing that.

No matter what you decide, good luck.


Ah, I missed the "ground floor" part, sorry about that over-site on my part.

Option 1: Gauge the willingness of the developer to accept a non-conforming house and/or the likelihood that neighbors will complain and use that to determine if you want to risk building or sell the land and make a little profit. The risk of pissing off the developer and your neighbors by willfully ignoring the deed restriction is probably not worth it in the long run.

"No single-family detached dwelling house or mobile home shall be erected or permitted to remain on the property unless it has a minimum of 1,000 square feet of living area on the ground floor."

Option 2: Build an "exterior living space" like an outdoor kitchen/living room that's under a roof extension. If the quote above is how the restriction is written it does not specify that the "...minimum of 1,000 square feet of living area on the ground floor." be within the heating/cooling envelope.

Whatever you do I think it's prudent to take your deed to a local attorney and pay the hourly rate to get proper legal advice on how far you can push this without getting into real trouble.


Abbey - no worries.  The ground floor clause is definitely unfortunate, considering what I'd prefer to do. 


Considering that the developer has reduced the price on the land so much,  it would seem reasonable that he might be amenable for a small fee to amend the square footage clause as follows;

"No single-family detached dwelling house or mobile home shall be erected or permitted to remain on the property unless it has a minimum of 1,000 square feet of living area on the ground floor,  without receiving the written prior approval of the developer."

How many bucks are you willing to pay to get the developer to change the clause?  If you demonstrate that what you are going to build would not take away from the value of his developed he might just let you,  with a reasonable fee for his trouble.  If he is selling $40k lots for $10k it seems like he might be willing to listen.
Give me a place to stand and a lever long enough,  and I will move the world.


Allow me to clarify.   I bought a bank owned foreclosure.   The developer still wants over $40k for his lots, though I suspect sales are slow at that price.   I'd be willing to part with a little cash to secure a variance, though I don't think he has a big incentive to grant one.   Best I can determine the subdivision is maybe 2/3 sold. 


$10k for a $44k property!   I'm surprised the developer didn't catch the deal . . .

I would choose your option (1)      Resell the property and find a property more suitable for your project.   Not abiding by the deed restrictions will ultimately tick off your neighbors. . .

    . . . said the focus was safety, not filling town coffers with permit money . . .


I'm also a little surprised the developer didn't snatch it up just to get it off the market at such a low price.   But they made their money on it once and maybe just didn't want to mess with it. 



Are you committed to the small size because of cost, or coziness?  I feel that depnding on design, the cost per square foot goes down as you bump up the size----so many of the expenses remain the same regardless.  Don't get me wrong----I'm a big proponent of small houses, but a bigger proponent of working with the parameters as they are dealt.  Also, very many people would consider 1000' a small house.  40x25 places have tons of options for great floorplans, and spanning 25' with an interior load bearing wall isn't difficult. 
Also, it's easier to get away with bending rules when you don't bend them to the point of breaking.  A 800 square foot place with 200 feet of porch, I bet no one would be so nit-picky as to bat an eye.  A 200 square foot place with an 800 foot porch is just asking for a fight, and they hold all the guns
Find what you love and let it kill you.


"How much could you get for the land?"

Hard to say, but the lot appraised for about $30k, and I think I could get at least $20k, even in a down market.

"Are you committed to the small size because of cost, or coziness?"   

Both.   I don't want my weekend place to turn into a big hassle or expense.  I think keeping it small will accomplish both goals. 


If you can get $20 grand for the land would that be enough to buy the same sized lot in another location without deed restrictions? Would this be easier than trying to figure out a way around the deed, or simply ignoring the deed and having to deal with the potential risk that if you're caught by the developer and he enforces the deed so you're legally bound to tear down any structure you've built?

A lot of questions and some serious risks if you ignore the deed.

I still say take the deed to a local attorney and get some expert legal advice. You might find there's a way to challenge the deed.


Yeah, I think $20k would probably buy the kind of land I really need.   At this point I'm leaning toward seeing what I can negotiate with the developer.  If I can't work out something with him, I'll hang onto the land for a while, and might ultimately flip it and look elsewhere.   I don't have much appetite for a legal fight and most likely it's a fight I would lose. 


I know of several subdivisions near Datil, New Mexico where the HOAs have mostly failed, and can't even get it together to keep the roads and shared water supply up.  Despite strict rules, violations are everywhere, and lots of the structures are non conforming, and worse, abandoned. Developers have long since disappeared or gone under. It's real wild west and people at this point pretty much do what they want. There are deals to be had, but we steered clear because of all the unresolved legal troubles.

Then I know of another subdivision near Ramah, New Mexico, where the HOA is very strong and not following the rules leads to fines, lawsuits and liens. Even things like not using the prescribed siding or painting your structure an unapproved color will surely cause big troubles.

Where does your subdivision fall in this continuum?

One of the best questions you can answer is are your subdivision neighbors fighting and suing each other? Or are they living harmoniously? Is everyone in the subdivision pretty much conforming to the rules, or are a significant number of residents bending or outright breaking them?  What is the penalty for breaking the rules?

Probably it's too late for you, but to anyone else reading this, think carefully before getting into a rural subdivision with HOA and covenants.  Keep looking-- there is land to be had without these restrictions.

I totally appreciate the idea of keeping the cabin small too...  It's what you want and need.


hpinson - Thanks for the thoughts and advice.   My cabin concept started small and grew several times over the years.   Finally I realized that what I started with was what I really wanted.   I think the bigger it is the less I will likely enjoy it.   I probably wouldn't be happy living the simple life all year long, but for my weekend place I think it will be ideal.

It's hard to tell about this neighborhood since there are so few structures.   Mostly it's just street after street of empty lots.   With that said, every structure I've seen has been conforming, or near enough that you could argue that it is within limits.   That makes me think the developer may come down hard on anything that doesn't measure up, and the first rule breaker will probably bear the brunt of any enforcement.   

Whatever I end up doing, I'm happy with my purchase.  I knew the restrictions on this lot might prevent me from building, but I got such a good deal on it I decided it would be a good investment regardless.   If I don't build here, I'll build somewhere else.   I've had the bug for a while now, so it's just a matter of time. 

Bob S.

Could you build a storage shed or garage on the lot and develop a rv spot?


with my HOA- the conditions are lodged with county

I could only get a building permit if the plans conformed to the HOA documents

I parked a trailer on the site and ended up with a 6 month pissing contest - with seemingly all the other owners complaining about their new trailer trash moving in next door.

This went away when I started building as previous owners had had them on site during their build and after- ie there were presidents


This all just makes me so happy I don't have to deal with any HOA restrictions or local codes. Yeah, I have to look at what's left of a mobile home that the guy a little ways down the hill "took apart" and pushed off to the side of his driveway. So now we can all see the frame, parts of walls, and the insulation he just left there, fortunately it's only visible when the leaves are off because once everything leafs out you can't see anything.

I understand why people don't want to look at the yards of those who simply cannot be bothered to clean up and dispose of their trash properly, but I also relish my freedom from restrictive HOAs requirements and municipal codes. You take the good with the bad, I guess. This is something I'm willing to live with for the freedom to build and live how I choose without governmental entities telling me what and how I can build.

tightspot, I think you might seriously want to consider selling and getting a piece of land where you don't have to deal with this stuff. If you can make $10,000 or $15,000 on the sale that would give you some extra cash to buy a better piece of land, or get a serious jump start on building.


QuoteThis is one of few places left where you can truly build whatever you like.

Guess not. 


Sounds like no matter what happens you have options and went in this with a good head. 

B/c I love finding creative solutions heres what I would would do.

From the quote you mention you cannot build a single family residence.  So dont build one.  Build and outbuilding/garage.  Once a structure is there and "approved/no one compains" it can be modified overtime and no one will really notice. 

So I would build a "garage" all legalish and approved...sit for a bit wait for any complaints/drama.  If none happen proced with step two the modification of that garage into your cabin.  Hiding said structure from any road so that the "use" is not completely obvious to any neighbors/code.  Put the no tresspessing signs with a fee like mentioned above.  Its all in the wording and people could argue points forever.  The point is to get a structure on the site legally then go from there. :)