Existing barn and application of deed restriction

by Sonja Haugan
(Sargent,Texas)

Visitor Question: We’re in Texas. We owned a home and a property across the street from the home for 19 years, and built a 2400 square foot barn across the street.

The deed restrictions say if you build a barn across the street, you must own a home on the opposite side of the street or build a home with a minimum of 900 square feet before building a barn. We sold the home recently and kept the property with the barn.

We just got a letter saying we are in violation of the deed restrictions and wanting to know our intentions. We do plan on building in approximately 3 years when husband fully retires. Is our property grandfathered in? We built the barn 16 years ago when we owned home. Thank you in advance for your input.

Editors Comment: We think your homeowner's association or whatever group wrote the letter is being extremely short-sighted. If the deed restrictions don't say how to handle the matter if the primary residence is sold, they are really lacking. Would the HOA have you demolish the barn before you sold the house? That would be extremely silly.

So our advice is to try to meet with them and ask them in person how they think you should have handled the matter. If their answer is nonsensical, which we predict it might be based on the letter they sent you, and if they do not budge, you might have to threaten to make it a legal matter or actually consult an attorney.

Another piece of practical advice is to respond to the letter immediately giving them your actual intentions. Respond in writing if that is what they asked you to do, or respond when you meet with them in person, but be sure to keep some kind of record of how you respond.

This situation could go in a lot of different directions. You ask if your barn is grandfathered, but the answer to that depends on the exact wording of the deed restriction. But it sounds as if the deed restrictions are silent on the matter, and that is why you are in a gray area that requires either reaching a mutually acceptable solution or taking legal action if talking does not result in a reasonable recognition of the fact that your actions certainly conform well to the intent of the deed restriction.

This sounds like an HOA getting too tied up in what they see as the letter of their deed restrictions and not applying common sense. But right is on your side here, since their deed restrictions probably don't say what happens after the residential property eventually is sold or changes ownership. So you did not create the problem.

Meet in person, hold your head up high, speak calmly and in a civil fashion, and try to check your anger at the door. (I admit I would have a hard time doing so!) Near the beginning of the meeting, try to get them to focus in on the key question, which is what they want you to do about the barn. Do they really intend that you demolish it? You are still a member of the HOA, and they should be motivated to deal reasonably with you.

A nasty dodge that might work is for you is to threaten to start construction of the home by pouring a foundation but not to finish it for three years. You can point out that they are incentivizing this behavior on your part. I bet they won't like that. Good luck on this.

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