When deed restrictions and HOA rules contradict

by David Petty
(Bremen, Ohio. USA)

Visitor Question: My deed restrictions clearly state I can position a structure to the front lot line, provided I follow the defined setbacks of the county plat map. No setbacks are defined in the maps. The HOA building rules state a 25 foot setback is required. Which is enforceable?

Editors Reply: Our profound apologies to the person who asked this question. We overlooked it for months in our equivalent of an inbox because we were reading the subject line erroneously. We are sure that this matter has been resolved one way or another by now, but upon closer review and clearer thinking, we decided that answering this might help someone else.

Just to be clear to all readers, the question is whether deed restrictions (which may be known to the homeowner as the master deed, development declarations, or other names) govern if the HOA (home owners association) board or HOA itself subsequently makes different rules.

The answer depends completely on how your deed restrictions or master deed were written. If these clearly set up an HOA and give the power to make binding rules to the HOA or more likely to the HOA board, then it may well be that the HOA building rules are what must be followed, rather than the original deed restrictions. In the case of the person who asked the question, the HOA adopted a rule that is more strict than what was required in the deed restriction that set up the HOA.

This raises another caution for someone thinking about buying into a development governed by an HOA. In addition to paying close attention to the deed restrictions or master deed, which should be (but isn't always) provided to the buyer before a real estate closing, a prospective buyer will want to read and consider adopted HOA rules if there is an active HOA with the power to make additional rules.

So the person who asked this question may be stuck with working with an attorney to find a loophole in the way the HOA was set up or the way it adopted its rules in general and this particular rule specifically. But of course the expense of legal research, with no guaranteed benefit, has to be weighed against the importance of disregarding the 25 foot setback.

A well-functioning HOA would have assured that it was properly set up, that any boards or committees involved in making rules were elected or appointed correctly, and that every rule was adopted in accordance with the procedures set forth in the master deed or in subsequent resolutions of the HOA or its board if that is allowed.

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