Of course, the best solution is to remove the applicable language altogether.
Unfortunately, most, if not all developers will not
negotiate the terms of the CC&R provisions. I do know of two cases where the
homeowner negotiated the CC&R terms with the developer
when only a few homes remained in the development. Upon the sale of the last
home, all remaining rights, title and interest is
generally tranferred to the homeowners' association. The developer is out the
door with his big bag of money, never to be seen
again and no longer caring about what happens to the CC&Rs.
-Paul, W9AC
----- Original Message -----
From: "WYsixK" <wy6k@yahoo.com>
To: "Paul Christensen" <w9ac@arrl.net>; <towertalk@contesting.com>
Sent: Friday, March 15, 2002 5:05 PM
Subject: Re: [Towertalk] deed restrictions
> Paul,
>
> Good comments. Is there anything that one could write on the CC&R's
> that might negate certain portions of the CC&R's. For instance, if I
> write just above my signature something to the effect that I do not
> agree to items x, y, and z and the escrow agent allows this to be
> recorded - does that do any good?
>
> Michael
>
>
> --- Paul Christensen <w9ac@arrl.net> wrote:
> > > The method of enforcement of CC&R's is a lawsuit (at least in
> > > California). They have to sue you.
> >
> > Generally, the Homeowner's Association is entitled to immediate
> > injunctive relief, pending the outcome of the case if a complaint is
> > filed in a court of competent jurisdiction. Know what you agreed to
> > in the CC&Rs in the event they call your bluff.
> >
> > > continuing violations of the CC&Rs. The basic legal concept is
> > that
> > > you can lose a right if you fail to claim that right for some
> > period of
> > > time or you selectively claim that right.
> >
> > Most CC&R language is drafted in a manner where the homeowner waives
> > his right to a laches defense (e.g., the Association knew of
> > your CC&R violation and that of others but acquiesced and failed to
> > act in a timely manner).
> >
> > > I told them I would be happy
> > > to let it all go to court and see what a judge thought. No one
> > sued
> > > and I kept the system up until I moved several years later.
> >
> > Count your blessings. It's not a matter of what the judge thinks
> > (too much Judge Judy on TV). Believe it or not, the judge must
> > rule within the framework of his jurisdiction's applicable contract
> > law.
> >
> > > This is practical advice, not legal advice. If you put it up
> > rather
> > > than ask for permission, they have to go to the expense of suing
> > you to
> > > get it down.
> >
> > Or, they can place a mechanic's or construction lien against your
> > property for violating the CC&Rs, and at little inconvenience to
> > the Association. Again, Be prepared for the Association to call your
> > bluff.
> >
> > It's critically important to go back and read what you have agreed to
> > before placing yourself at risk, particularly with what you
> > have agreed upon in the event of breach.
> >
> > -Paul, W9AC
> >
>
>
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