AboutTimmy Chou Expertise I am a experienced Mediator and a partner in a management consulting firm. As a mediator I work as a third-party neutral and specialize in partnership/shareholder disputes, management/labor issues, company culture difficulties, and family-owned business problems. I can help describe why alternative dispute resolution may be a good choice for you. As an experienced management consultant I may be able to offer creative ideas to help resolve your organizational and business problems and disputes. "If you say conflict, I say opportunity".
Question I bought a home last year, it holds CC&Rs on the track, it regulates that lot 7,8,9,10 are to be one story, 1800 or better in sq footage and 20 feet in height,we are lot 9 facing the lake, lot 10 is in front of us. we read these cc&rs to make sure that our investment would be protected before we bought the protery to ensure if lot 10 was to build a house of 20 feet as dictated that we would not lose our view, the owners of lot 10 are building a house and it is at the 30 foot mark. We have lost our lake view, 20 feet would have been perfect and no view lost. We pay no hoa or associations on the property, but our deed did come with the CC&rs, I checked with our title company and they have confirmed that lot 10 is recorded with the same CC&rs and that these also follow the tract. We are considering hiring a lawyer to protect our interest, I am assuming they are bound by these CC&Rs which were drafted and recorded in 1986. Do we have a case ? they are in early framing!
Answer Thank you for your question!
Mediators act as neutral third parties to disputes and never "get involved" in judging the merits of conflict, but merely use special techniques to help the parties decide how to negotiate their own settlement.
The case you describe here is unfortunately very typical. I am not a lawyer, nor can I mediate your dispute with just you alone but I can respond to your question from my business consulting experience. Note that this dispute will likely have legal implications and you may wish to consult an attorney.
In my experience CC&Rs are always a contractual agreement between buyer and seller. You buy the real estate contingent on your agreement to abide by the covenants. But the agreement is not between individual property owners, but each agreement is between the seller and the individual property owner. Sometimes a HOA or other governing body is also established to regulate these matters, but absent a HOA it is a duty of the SELLER to enforce the agreement against individual owners.
Hence, any action you would take would be against the seller since if is his job to enforce the rights and you paid him $XXX with the expectation that he would enforce the rights.
The owners next door are "bound" by the deed but it still requires someone to enforce the requirement--the seller.
I'm sure your attorney can speak to the specifics of the law in your jurisdiction, but I would suggest that the seller be noticed up with a demand letter. If necessary, you could perhaps consider a "class" suit along with all the other owners subject to the same CC&Rs, since the precedent of a violation that is not challenged opens the door to ANY violation by anyone, which could threaten all of your property value basis that depends on the CC&Rs. Everyone has a stake in the outcome of this dispute.
In some places the local building department has a duty to check the CC&Rs prior to appoving plans before issuing a building permit. If this was missed, then the local municipality has some liability here also.
That said, there is no immediate reason to "lawyer up" until you have tired the diplomatic approach first--again, with the seller or building department. Why havn't these agreements been enforced, and if they are not you have little choice but to seek to redress legally. This is not an easily settled matter, since (unlike a setback distance) your 20 foot view requirement is not optional, however there may be some room to assist the parties here to collaborate. The neighbors are not going to take easily to the notion of taking a financial hit. Did they submit plans? Were they approved? Was an exception granted? In any case, unless the neighbor just did what they wanted to do without any permission, the seller is likely going to have to either help pay the neighbor or you. If this can all be worked out short of litigation there would be considerably more money on the table to work with.
Your legal bill alone for this could easily top $25k if the case went the distance.
Contact the seller and the building department and see where they are, and then you will be in a better position to determine who to talk to first.
Remember to document carefully your contacts, and follow up by letter.
These are some ideas. Feel free to follow up with additional questions.
For your information, the pros and cons of the types of dispute resolution methods follows.
GOOD LUCK!
Arbitration, Mediation, and Litigation
Arbitration: the referral of a dispute to one or more impartial persons for final and binding determination outside of the judicial system
Benefits of Arbitration:
Confidential, no public record
Limited exchange of documentation, information
Quick, don't have to wait for a court date
Arbitrators have expertise in the subject matter and are trained in conflict resolution
Cheaper than litigation
Preserves business relationships
Negatives of Arbitration
It's a compromise, no %100 winner
Complex arbitration can be costly
If not satisfied, may litigate the arbitration procedure
Poor results with an unskilled arbitrator
Both parties must agree to cooperate in the process
Mediation: the process by which parties submit their dispute to a neutral third party (the mediator) who works with the parties to reach a settlement of their dispute.
Benefits of Mediation:
Neutral mediator can objectively suggest alternatives not considered before
Parties are directly engaged in negotiating the settlement
Can be quicker than litigation
Less costly than litigation
Preserves business relationships
85% of American Arbitration Association cases mediated find successful solutions
Negatives of Mediation
may not reach a binding decision
unskilled mediator
Litigation: using the judicial system to resolve disputes
Benefits of litigation:
a clear winner and loser
uses a prescribed set of procedures
more predictable outcomes
is final
Negatives of Litigation:
waiting for court dates can do more hare
usually more expensive than mediation and arbitration
part of the public record
