Author Topic: Deed restriction dilemma - need advice  (Read 17560 times)

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Offline tightspot

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Deed restriction dilemma - need advice
« on: April 16, 2013, 09:05:31 PM »
I apologize for this being so long-winded.  Nevertheless I need some advice and look forward to your thoughts.   

After a couple years spent looking for land on which to build a small cabin, I finally secured a 6.5 acre wooded lot at a great price, thanks to the previous owner who failed to make his monthly payments.   The land is about an hour from my house, in what I would call "extreme" rural Tennessee.   The nearest town has a convenience store, a post office, a Coke machine, and that's about it.   I have confirmed that there is NO local building or planning department of any kind.   This is one of few places left where you can truly build whatever you like.  It's the wild west.  Not that I think that's an entirely good thing, but that's the situation. 

At any rate, what I really want to build is a very small cabin, maybe 16x20 or similar structure with a loft.   I don't want to spend a ton of money, and I don't want to recreate my primary residence an hour away.  I just want a small place to go hang out on the weekend, spend some time outdoors, and have a cabin big enough to get out of the rain at night, maybe have a couple friends stay over occasionally.   I have a busy life and I am aware that the property will only be used occasionally.  Most of the time I'll be miles away. 

My dilemma is this.  My lot comes with what the developer characterizes as "light" deed restrictions.  The one that's causing me grief is a restriction that all homes must contain at least 1000 square feet on the bottom floor.  Square footage upstairs doesn't count.  Complying with that restriction will force me into building more than I want to build, and blowing my budget.   For what it's worth, no HOA exists currently, and no HOA is authorized by the deed restrictions. 

Now, the possible mitigating factors.   My lot is located in a "subdivision" that is basically empty and has been for a long time.  The entire development is approximately 1000 acres, divided into about 100 lots, with each lot being about 5-10 acres in size.   On those 100 lots, only 3-4 homes have been built in the 8 years the subdivision has been around.  So it's as if someone threw a subdivision and nobody came.  The houses that do exist are located far from my lot.   My lot is totally wooded, so any structure I build will likely be invisible from the road and more or less invisible from any adjacent property. 

You can probably tell by now that I have flirted with the idea of building my small cabin in violation of the deed restriction, on the theory that a)  probably my little cabin won't be noticed on my large wooded lot and b)  possibly no one will care in a subdivision that is more or less empty. 

So my options are:

1.  Comply.  Build nothing.  Flip the property.   Keep looking. 
2.  Build a 16x20 "storage building" and claim compliance with the restriction. 
3.  Contact the developer and try to negotiate an exception for my intended purpose. 
4.  Build my small cabin in clear violation and hope no one objects. 

So the question is, should I even think about ignoring the deed restriction?   My real estate agent says build the small cabin I want and if someone objects, expand it to meet the restriction.  That's not a horrible idea, but I really don't want a structure large enough to conform with the restriction.   I want small.   I am uncomfortable contemplating breaking the rules, but I also believe my cabin could be built without disrupting anyone's plan, given the size of the lot and invisibility from outside my property.   Again, no HOA exists, and no building or planning department exists. 

Pros?  Cons?  Experiences or thoughts are welcome. 


Offline diyfrank

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Re: Deed restriction dilemma - need advice
« Reply #1 on: April 17, 2013, 03:32:52 AM »
Where I built my cabin they count porch as part of the foot print. If thats how they add it up there a large porch would get you there.
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Offline MountainDon

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Re: Deed restriction dilemma - need advice
« Reply #2 on: April 17, 2013, 05:35:12 AM »
Q.  If there's no HOA who does the enforcing?  We own properties we rent out in a condo development and there it is the association that does the enforcing and fining.

We also looked at mountain propertiy that had all sorts of covenants on sizes and what could be done. There was an HOA there too. We walked on by.

Q. How large are the other homes/cabins that have been built? If they are meeting the 1000 sq ft main floor rule what makes you think they won't mind you building a 320 sq ft cabin? Some people are funny that way - they followed the rule and then someone comes along and doesn't. The thing is what could they do about it and who does the enforcing?

Personally I believe it would be unwise to build a small cabin and then if caught expand it to be large enough to meet the rule but much larger than what you would be happy with. At least I would not like that. It is a huge step from 320-400 sq ft to 1000.  1000 can be a home.

I'd pass on the deal, but that's just me.
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Offline Squirl

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Re: Deed restriction dilemma - need advice
« Reply #3 on: April 17, 2013, 05:35:57 AM »
Proceed with caution.
I will state off the bat, I do not trust realtors.  Their job is to sell, and most will say anything to accomplish those means.  They are long gone if there are fines later.

No matter how rural and desolate it seems, those sweet nice neighbors that are almost never around will know everything you do, and many will be the first to call whatever enforcement agency there is to check up on you.  Those 3-4 people that have already built in the development will be most interested in enforcing it.  They bought into the concept of deed restrictions, and may see your little structure as decreasing the value of their property. 

From a quick research, TN is governed by the 2009 ICC.  http://tn.gov/fire/homebuilding/index.shtml  Some places don’t hire enforcement departments.  I have seen deed restrictions enforced in various ways, but in my experience, they aren’t always through the building department.  Sometimes they are through county zoning offices.  They come by after the fact and hit people with fines or demolition for non-permitted use.  I don’t know TN well enough to know how its government is set up.


I don’t mean to be all doom and gloom.  My general understanding is the developer wouldn’t be the only person you need to get permission from.  Usually deed restrictions are part of a subdivision and written in by the developer or the county.  They go before whatever government agency approves them and then the covenant conveys with the land. 

Another option would be to get a lawyer and go through the petition process to remove the deed restriction.  I have no idea what the specifics of property law in TN are.  My basic understanding is there would be a process, such as a petition with a period of public notice and comment. The neighbors that bought into the deed restrictions would get a chance to weigh in on the removal.  If a developer fears a lawsuit from home purchasers who already bought in, they would be reluctant to make an exception.

Whatever you decide, good luck.

Offline tightspot

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Re: Deed restriction dilemma - need advice
« Reply #4 on: April 17, 2013, 06:11:54 AM »
The porch idea is interesting.  The restriction doesn't say anything about porches so I doubt I could make that fly, but that would definitely help if I could. 

The restriction says:

"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."

The developer or the other landowners have the right to enforce the deed restrictions, but since there is no HOA or public official to fall back on, I'm assuming they'd have to sue me and get a judgement. 

The subdivision - I use that term loosely, is a 3 phase affair.   Phase 1 has three homes that meet the restriction, and one home that I think is borderline.  I'm not sure it meets the rule, but it might.   There is nothing built anywhere in phase 2, where I am, or in phase 3.  I have spent several hours out there walking the property and I've never seen another person, even going down the road.   So it is very desolate.   

I can't say with any certainty that no one would mind me building a small cabin.  They have a right to object and they might.  I'm just saying that my cabin would never be seen unless someone was on my land.   Since it would be invisible to to outside world, I wouldn't think that it would instantly spark outrage.   Of course, you never know.   The developer still has some unsold lots in the subdivision, so I think he would be the guy most likely to object. 

I also place no trust in real estate agents, even the ones who supposedly work for me.  I did think the option to expand the structure would be a nifty option to solve the problem, but ultimately I don't want a structure that large, so its somewhat irrelevant. 

As far as government agencies go, there is no zoning department either.  This is a very rural (poor) county, and they have only a bare bones county government.  There would be no enforcement mechanism outside the courts. 

The deed restrictions do specifically state that they may be cancelled, altered or amended by the developer.   

Thanks for the input. 


Offline bayview

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Re: Deed restriction dilemma - need advice
« Reply #5 on: April 17, 2013, 06:33:27 AM »
   We also have a 1000 sq ft “heated, quality materials” deed restriction in our sub-division.

   About 5 years ago, a double wide mobile home moved in . . .    No one did anything.   Last year a couple moved into a one acre wooded lot and are living in a travel trailer.   Again, a lot of mumbling but nothing was done.   We are getting depressed homes and junk cars.   Again, nothing . . .    The neighborhood has “snowballed” into an eyesore.

   Point is - The neighbors are unwilling to get together to hire a lawyer and I am unable to afford the cost on my own.   It no longer matters.   It’s, do what you want.   It is also reflecting in the value of homes in the area.   Obviously, no one wants to buy in a “poor” neighborhood.

   We had cleared our lot, put in electric and water, built a garage and a storage building.   But, we will not build our home there now because of the violations.   Hopefully we will not lose to much money when we sell . . .

   We have recently purchased another lot in a “nicer” neighborhood.   We will have to start all over again.   Clear the lot, run electric, water, septic, build garage, storage, etc. before starting on the house.   I do most of the work myself . . .    So I guess I am about 3 years behind now . . .     Thanks!

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Offline tightspot

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Re: Deed restriction dilemma - need advice
« Reply #6 on: April 17, 2013, 06:44:13 AM »
bayview - I definitely understand that point of view.    I don't want to have a junky place or be a bad neighbor, but I do understand that it's a can of worms once you open it. 

Offline tommytebco

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Re: Deed restriction dilemma - need advice
« Reply #7 on: April 17, 2013, 06:46:09 AM »
To me, the obvious first step is to contact the Developer (It sounds like you know who and where he is) and ask if he would grant a waiver/exemption. Nothing ventured, nothing gained. And virtually no added cost.

There doesn't seem to be a way to maneuver around the clause. Why not face it head on. If that's a negative result, it's time to sell and keep on looking.

Offline mgramann

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Re: Deed restriction dilemma - need advice
« Reply #8 on: April 17, 2013, 06:46:55 AM »
This gets a little "legal" and "persnickety" but it is an option.

Is there anything in the deed that says those attempting to enforce have the right to inspect your property?  If not, and you are sure there is ZERO visibility from other parcels(including winter with leaf drop), a covered porch may be a good bet.  The added roof area solves the problem of enforcement via "google"

Post signs indicating there is no trespassing and a land use fee for violation.  Should someone attempt to enforce the deed, they would be going on the record saying they used the property, and automatically be subject to the fee.  Even if the fee doesn't hold up, the trespass itself is illegal, and any evidence obtained could be thrown out via "fruit of the poisonous tree" defense.  You can't enforce rules when evidence is obtained illegally.  The only hole in this would be if an invited guest were to communicate the violation to an interested party.

Should all of that fail, and someone is hell bent on enforcement, you could slap up walls on the porch and call it living space.  Screen walls would maybe be an option, but you would need to see what the legal definition of "living space" is in that area.

I should have been a lawyer...

All that said-it's probably best to follow the rules.  I'd look into a 3 season or screened porch option.

Offline tightspot

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Re: Deed restriction dilemma - need advice
« Reply #9 on: April 17, 2013, 07:00:56 AM »
mgramann - you really should have been a lawyer!   I am liking the porch idea more and more.  If it were covered maybe I could make it fly as living area.   I will look into it. 

The restrictions do say that the developer (only) has the right to enter and remove non-conforming structures without trespass.   To me, that seems like an awfully legally precarious thing for him to do.   For instance, storage buildings are allowed.   Would a developer really start knocking down random small buildings because he thinks they violate the restrictions?   If building a structure too small irritates your neighbors, imagine how irritated people will be when you knock down their buildings.   I'd be a great way to get sued and around here, possibly shot.   So I am skeptical that anyone would actually do that. 

I really would like to follow the rules, all else being equal.   I'm not much of a troublemaker.  Just trying to find a way...



Offline Squirl

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Re: Deed restriction dilemma - need advice
« Reply #10 on: April 17, 2013, 07:46:26 AM »
This discussion is for education and debate purposes only and not legal advice.

Post signs indicating there is no trespassing and a land use fee for violation.  Should someone attempt to enforce the deed, they would be going on the record saying they used the property, and automatically be subject to the fee.  Even if the fee doesn't hold up, the trespass itself is illegal, and any evidence obtained could be thrown out via "fruit of the poisonous tree" defense.  You can't enforce rules when evidence is obtained illegally.  The only hole in this would be if an invited guest were to communicate the violation to an interested party.

That is only criminal not civil. Exclusionary Rule (http://en.wikipedia.org/wiki/Exclusionary_rule) And there are enough exceptions to even that.  All enforcement decisions on all property are civil and by a preponderance of the evidence.  (more likely than not).  It isn't a high burden to overcome.  A picture of the front and any plain person can tell that the outside dimensions don't even come close to 1000 square ft.  It doesn't have to be beyond a reasonable doubt.  They don't have to trespass.  Also, there is a difference between invitee, licensee, and trespasser.  Every state has different laws, but if you have a driveway or a sidewalk, there is generally a presumption that someone has the right to walk up and knock on your front door, even if there are no trespassing signs.  Generally only after you tell them to leave and they are given reasonable time are they trespassing.  Every state has different specific laws.  There are a lot of land use fees and other concepts that circulate well on the internet.  If those theories are brought before a judge and the judge finds them to be ridiculous or frivolous a person can get quite a slap from the courts.  In my lifetime, I've seen plenty of people held in contempt of court.  A visit to a local attorney may be in order.  If they tell you no problem, you might have a reliance of counsel defense if any fines or fees are levied later.


There are a lot of people that can cause trouble for you in this situation.  If they do, the cards are probably stacked against you.  Even this conversation would be considered evidence and probably discoverable in civil proceedings.  You are the one to take the risk. Is it worth it?

Again, I don't know the specific laws of TN, contact a local attorney for those.
« Last Edit: April 17, 2013, 08:45:26 AM by Squirl »

Offline Carla_M

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Re: Deed restriction dilemma - need advice
« Reply #11 on: April 17, 2013, 07:50:20 AM »
Quote
Would a developer really start knocking down random small buildings because he thinks they violate the restrictions? 

They would first send a letter giving you a time frame to respond. If you did not respond they would proceed through what legal steps there are before reaching the demolition point.

I think we all know what the legal choices are. The question is how willing is one to go ahead and break rules knowing that the consequence could be needing to expand or tear down the building? I would not be comfortable being the one to test the waters. We all have different tolerance levels for risky behavior though.
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Offline mgramann

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Re: Deed restriction dilemma - need advice
« Reply #12 on: April 17, 2013, 08:40:15 AM »
This discussion is for education and debate purposes only and not legal advice.

That is only criminal not civil. ...

Very interesting.  Much of my legal knowledge comes from police training, which generally focuses on criminal case law-hence my gap in knowledge.  I have seen civil judges(primarily TV) throw out legitimate cases based on illegal activity playing a role, so I suspect there is some discretion involved.

"Curtilage" rules(fences) tend to override the unwelcomed visitor issue(including law enforcement)-but with the cost of that, you may as well enjoy a bigger cabin :)

As squirl said, education and debate purposes only :)  My real advice is follow the rules and get a waiver for the porch, or determine what the requirements are to make it living space and follow those.


Offline tightspot

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Re: Deed restriction dilemma - need advice
« Reply #13 on: April 17, 2013, 09:12:20 AM »
Going back to a previous thought here.   If the state has adopted the 2009 International Residential Code and there is no local department to weigh in on the definition of "living area", my question becomes, does the ICC itself define living area?   If porches were defined as living area, I believe my structure would be in compliance and should withstand scrutiny.   


Offline MountainDon

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Re: Deed restriction dilemma - need advice
« Reply #14 on: April 17, 2013, 09:33:45 AM »
Mmmm. Where we are a porch or exterior covered patio is not considered to be living space. It is not included in the sq ft total given the home. A home for sale may list total area covered by a roof but the actual finished, heated/cooled space is what counts towards the living space. Similarly an attached garage, no matter the size, is not considered as living space. The wall between the interior living space and the garage is counted as the exterior wall when figuring living space. I suppose the definition could vary with location, but I think screened porches are never included in the living space total.

The IRC does state that living space must be heated, must have the ability to be kept at a certain minimum temperature so that would preclude a screened porch from being counted as living space. Portable space heaters do not count as a heating source.
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Offline MountainDon

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Re: Deed restriction dilemma - need advice
« Reply #15 on: April 17, 2013, 09:38:59 AM »
IRC 2009

R303.9 Required heating.
When the winter design temperature in Table R301.2(1) is below 60°F (16°C), every dwelling unit shall be provided with heating facilities capable of maintaining a minimum room temperature of 68°F (20°C) at a point 3 feet (914 mm) above the floor and 2 feet (610 mm) from exterior walls in all habitable rooms at the design temperature. The installation of one or more portable space heaters shall not be used to achieve compliance with this section.
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Offline Carla_M

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Re: Deed restriction dilemma - need advice
« Reply #16 on: April 17, 2013, 10:12:28 AM »
How about this line of thought?  What was the original intent of the rule? Many laws and rules are poorly written, poorly worded and it sometimes helps to seek out what the intent was. Constitutional law arguments often get into the question of original intent.

I'd guess that the original intent was to keep out small poorly built shacks. At least in the few properties I have looked at that had covenants against this and that, that would seem to have been the intent. Some of those were more highly organized than the one here and had a near endless list of do's and don't's. They clearly were designed to keep the neighborhood looking like a suburb in the forest. Some even had rules on clearing and thinning one's own trees, but I'm wandering.

So, look to see what the intent might be interpreted as.  Then put the shoe on the other foot. Pretend you are a landowner and have built to the prescribed rules. How would you fell and think if someone started building a 16 x 20, no matter how nice. You may have wanted to build a 600 sq ft cabin, but stretched it and your budget to make a legal 1000 sq ft cabin. If you wouldn't feel some animosity you must be a saint.

I had lots of head butting with the condo association where I lived for a time. I did not check it out well before purchase. It was my first HOA (and last) and I did not do my homework. People did report on the slightest deviation from what the rule book said.

Anyhow G/L with your decision.
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Offline kbaum

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Re: Deed restriction dilemma - need advice
« Reply #17 on: April 17, 2013, 10:52:05 AM »
Growing up my parents built their own house on a new subdivision (the first house).  Average lot size was 20 acres.  We knew of restrictions, but never really looked at them.  After 5 years we decided to look, and low and behold, we broke every one.  But it said the HOA is made up of all homeowners in the subdivision.  My dad said he wasn't worried because he has enought dirt on the other home owners that we ok.  I think they had 1 meeting over the 20 years that they have lived there.  and it was over 1 family wanted chickens.  They got approved.   ;D

Offline bayview

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Re: Deed restriction dilemma - need advice
« Reply #18 on: April 17, 2013, 01:29:33 PM »
As MtDon mentioned . . .    Most “living” area is heated/cooled.

Putting up fences, no trespassing signs probably will not keep the tax assessor away . . .      Once assessed,     the neighbors could simply check county records.   Most likely online.

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Offline Don_P

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Re: Deed restriction dilemma - need advice
« Reply #19 on: April 17, 2013, 04:13:03 PM »
Quote
what I really want to build is a very small cabin, maybe 16x20 or similar structure with a loft.   I don't want to spend a ton of money, and I don't want to recreate my primary residence an hour away.  I just want a small place to go hang out on the weekend, spend some time outdoors, and have a cabin big enough to get out of the rain at night, maybe have a couple friends stay over occasionally. 


You bought the piece of land with this goal and those restrictions?

Offline Huge29

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Re: Deed restriction dilemma - need advice
« Reply #20 on: April 17, 2013, 05:00:44 PM »
Talking to the developer may be a good idea, but keep it on an unnamed basis, maybe have a friend call for you.  I have seen it around here where developers are changing CC&R's to get some sales going, of course, he could not care less about helping the bank get this one sold since it is not his inventory.  So, maybe have friend ask about other lots in inventory.  I like the outbuilding idea.  I am in an HOA and we allow outbuildings, I can see someone using that as their staging building for your big plans of a 1,100 SF cabin to be built in the future.  As has been mentioned many times, keep it out of sight and out of mind basis.  Go out of your way to be friendly now before buying the lot to the other lot owners, keep them happy and everyone is happy.  Nothing hurts their values more than a parcel foreclosed on, the quicker the bank sells it, the quicker they are happy.  I would pick the brains of the other lot owners and how they built their's, they will be flattered that you are interested.  Take a keen interest in their handiwork and you will turn many allies right away.  Basic human nature, when was the last time someone else asked your opinion and admired your handiwork?  You can't help but befriend the person.  These people will most likely be eager to tell you everything, everyone's issues with the development for years.  That is what we experienced as we did a transaction that was a little bit in the gray area, but officially ok, so we show up for every meeting and every work day and volunteered to be on the HOA board...now I help make the rules.  Best of luck!

Offline Abbey

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Re: Deed restriction dilemma - need advice
« Reply #21 on: April 18, 2013, 03:25:33 AM »
I doubt a porch would be considered "living space" in the legal sense, as it would not be within the heating envelope. Personally I think your first course of action is to talk to the other people living in Phase 1 to see what their feelings regarding your cabin might be, and the developer, who is, given the lack of any HOA, most likely the only person who could give you a legal waiver to the deed restriction. Talking with the people living there will give you some insight into whether they'll be complainers likely to bring your cabin to the attention of the developer or if they're "live and let live" people who will be happy to ignore you and your cabin farther back in Phase 2.

Of course the simplest course of action is to build what you want and in the event you're caught and the developer pushes for you to comply with the 1,000 square foot deed requirement, and it's highly unlikely you would be forced to tear down your cabin, rather you would simply be forced to add another 260 square feet to bring you up to the deed restriction. If this takes several years to happen, if it even does happen, you might be in a better financial position to afford an addition to your cabin.

The porch idea could come in to play in the event you are caught and made to comply because if you build a large enough porch now you can always dry it in to comply with the deed. Let's face it, at 16" X 20" with a full loft you're very close to 1,000 square feet.

Offline tightspot

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Re: Deed restriction dilemma - need advice
« Reply #22 on: April 18, 2013, 05:44:52 AM »
"You bought the piece of land with this goal and those restrictions?"

Yep.  I bought the land at about $.25 on the dollar, fully aware that it might not be suitable for my building.   If I can't make my structure work, I should be able to easily sell the lot at a profit. 


Offline tightspot

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Re: Deed restriction dilemma - need advice
« Reply #23 on: April 18, 2013, 05:47:54 AM »
"Let's face it, at 16" X 20" with a full loft you're very close to 1,000 square feet."

Unfortunately, only square footage on the bottom floor counts toward the restriction.   If it were 1000 square feet total, I'd probably be buying lumber right now. 



Offline Carla_M

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Re: Deed restriction dilemma - need advice
« Reply #24 on: April 18, 2013, 05:49:05 AM »
I don't intend this to be mean hearted but why should the developer grant an exemption or make a special concession to the 1000 sq ft rule to you?  Number one, he has already sold the land to you, he doesn't have to try to make a sale. Plus he's already sold land to others. Some of those have already abided by the 1000 sq ft rule and built. It sounds like there may be others who have not yet built and are planning, wanting cabins of 1000 sq ft. Indeed they may have bought because they do not want smaller lower cost buildings sprouting up. Not everyone who wants land in the countryside wants to live minimally.

If the developer were to make a special exemption to you he would have some explaining to do to the others. Legally perhaps he can't even do that. Changing rules in the middle of the game would piss me off if I was a player in the game and was not the one receiving the benefit. Is that hard to understand? There were reasons the rule was set in the first place. I'm sure it was not a whim. No doubt the developer thought it was in the best interest of the development to have some minimum standards. He aiming at a particular segement of the market. All that is the right f the seller or developer.

As I said before I fell into a HOA trap because I was not smart enough to read and understand what I was getting into with the condo association. I was the odd man out and the solution to my problems with the rules was ultimately to move away from the rules.

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

If you were aware of the restriction before purchase that would have been the time to pursue changing rules. If, like me you made a mistake and bought without readin all the fine print, learn from that and get on with selling and looking for land that will be suitable for the purpose you intend.

Don_P had the best response to the topic so far if anyone looking at this is brutally honest with themselves. What were you thinking at time of purchase?
The personal dietary habits of people kill more frequently than firearms. Eat healthy and carry a gun.

 

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