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Builder Does Not Meet Subdivision Restrictions

Visitor Question: We have a builder that continues to build houses that do not meet our subdivision's restrictions... for example: gravel driveway, non-brick mailbox, mandatory sq ft. etc. We do not have a home owner's association. How can we put a stop to this?

Thanks.

Editors Reply: If you and your neighbors want your restrictions upheld, you will have to work directly with everyone in the construction and real estate process that should be stopping this, even if you don't have a homeowner's association.

1. A bank or other lender should not be financing construction of something that should not be sold because it is non-compliant with deed restrictions.

2. A real estate agent should not be selling a home that does not meet the subdivision's private deed restrictions.

3. A title company should be watching out for just such conditions before issuing an opinion.

4. Just for good measure, a good builder would not ignore subdivision restrictions, especially when the examples you cite appear to be typical restrictions that help create and preserve property values, rather than some ridiculous exotic rule. If the builder is cheating on these obvious things, we shudder to think of what other corners are being cut.

To approach this, first determine how the rest of your neighbors feel. You know that you can form a neighborhood association (see abundant material on that topics on this website if needed), even if you do not have a formal, legal homeowners association. If you divide up the work and the minor expense of fighting this, it will be easier.

If neighbors disagree or don't want to get involved, then at least you know that you will have to do most of the work yourself if you want the situation to be addressed.

Secondly, we suggest trying a direct and formal appeal to the builder. Send a certified letter outlining your concerns and containing the entire text of your subdivision restrictions. Let the builder know that you expect compliance and that you will no longer ignore any violations of the restrictions.

This step helps preserve your legal rights, should some of you decide to take legal action in the future. It also is just a good business-like way to approach the situation.

If you think it might be helpful, you could ask the builder for a sit-down meeting. Often people who are blatant in their disregard for restrictions would not be responsive, but sometimes people act inappropriately mostly out of ignorance, or because they think no one will mind.

Third, approach your local government and inform it of exactly what is happening. No, it is not the government's responsibility to enforce your deed restrictions, but some are concerned and helpful in situations such as this. At least they should be aware of this behavior, so that they become reluctant to grant this bad actor any future favors. It is possible that some of these breaches of your restrictions also are against the county, city, or town laws as well.

Fourth, figure out what you have time, money, and energy to do in terms of notifying the other groups that we mentioned above who should be helping to prevent this. Depending on the size and complexity of your community, you might find you can afford the postage and work required to send a certified letter to all the lenders, real estate agents, and title companies. Or you may have to be highly selective.

If you are in a major city, then send these certified letters to the current president of the Realtors(R) association, the largest and most active title companies, and a few major lenders. Enlist the cooperation of your chosen addressees in informing others who might be able to stop this nonsense if they were watching for it.

To be fair, enforcement of deed restrictions is not a primary responsibility of real estate agents, lenders, or even title companies, but conscientious people in these industries would start to become much more cautious about dealing with this builder if they were aware of the situation.

We think it would be a good idea to send the builder a copy of your certified letters to the others too, so the builder is aware that his business methods may receive more scrutiny in the future. (You could put all the copies in one envelope and then send that certified to the builder.)

Of course you can also try negative publicity if you find a sympathetic media person, take to Facebook and the like, and if local law permits, post signs in your yards so that future home buyers know that Builder X does not abide by our restrictions. In time, these tactics should get the builder's attention. In time, someone in the real estate ecosystem will refuse to allow transfer of a property that was built without regard to your subdivision regulations. So in reality you are doing the whole community a service by stopping this practice.



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