Expert: liznarr - 1/27/2010

Question
Hello,
I purchased a new home in Fisherville, KY 4 months ago which already had a shed on the property. I contacted the Land Company who represents the developer (there is no HOA because there aren't enough residents in the subdivision yet) to ask about building another shed.  The representative first told me I couldn't build a shed.  Then, after researching the by-laws, I found out I could build a shed that was "architecturally" the same as the house.  The shed currently on the property does not match the house so, now the representative is telling me I have to remove the "illegal" shed or bring it into conformity although he didn't mention any timeframe for complying.  I'd like to know what actions I could take now.  Do you think I'm "grandfathered in" since the land company never took any action prior to me purchasing the property and bringing the shed to their attention? Should I get an attorney and sue the previous homeowner, and maybe realtor, for not disclosing the "illegal" shed since part of the purchase price included the value of the shed?  In addition, part of my decision to buy the property was based on having a place to house my riding lawnmower.

Answer
Hi Joe,

If Covenants and Restrictions were in place at the time of your purchase and this shed was not an approved shed, you are not grandfathered in on the basis that the previous owner did not obtain approval and/or put up an approvable shed.

If the previous owner put up the shed; did not obtain approval; and did not disclose this to you, then you need to speak with a good attorney in your area for legal advice.

If you received a Seller property disclosure form, check to see if there was any place this information “should have been disclosed,” but was not.  If you did not receive a disclosure form, check with your state’s Real Estate Commission to see if a disclosure form by Seller is a legal requirement that was not met.

If your purchase was contingent upon having a place to store your riding lawn mower, and this illegal shed was “the place” you intended to use for that storage, any Realtor involved with your transaction should have exercised due diligence and made sure the shed was approved.  You did not state whether or not language for this requirement was included in your Contract of Sale, but hopefully it was.

While I cannot give legal advice since I am not also an attorney, it sounds like you have good grounds to go forward against the previous owner and possibly any real estate agents involved, especially if you were represented as a buyer-client.

Before incurring any legal fees, you might try contacting the previous owner and any agents involved, asking that he/they pay the costs to bring the illegal shed into conformity with the Bylaws.  Be sure and get a couple estimates, also, to have this done and present to them.  

If any or all of the agent(s) and/or owner refuse to pay you the cost to bring the shed into conformity, simply advise them that they leave you no choice but to take advantage of any legal remedies available to you, and that you will also ask for your Court costs.  If you involve any agents, make certain that you also include their Broker-in-Charge (BIC), because the BIC is responsible and liable for any actions or inactions of any agent working under him/her.

I hope the above is helpful and that you are able to get your issue resolved.

Good luck to you, and feel free to write again if you have additional questions.

Regards,
Elizabeth