Expert: Todd C. Menard - 1/31/2010

Question
QUESTION: The CCRs in our subdivision state that no "house trailer" may be placed, parked, or stored on any lot.

I and a number of residents have travel trailers at our houses, and we have just gotten notices that our travel trailers---RVs as they are more commonly known as---are in violation of the clause prohibiting "house trailers".

The term house trailer is defined by Websters Dictionary as a "Mobile Home", which is defined as a unit that is towed to a site, and then left in place for use as a residence.

http://www.merriam-webster.com/dictionary/house%20trailer

http://www.merriam-webster.com/dictionary/mobile+home

I have found example of case law from another state which says a CCR clause that is ambiguous can not be enforced, and in fact, it is funny that the example used is almost the same as the issue we are facing.

http://www.wwrplaw.com/news.asp?news_id=100#_ednref14

My question to you is can this prohibition of a "house trailer" be used to prevent the keeping of a RV on our lots??

Thanks you for taking the time to answer this.

Mike Starkey

ANSWER: Hello Mike - Actually CCandR's are enforceable unless the instruction is unlawful. Laws change and many times the homeowners association does not remain diligent in keeping abreast of the changes. Many CC%26R's prevent 'mobile homes' or 'manufactured homes' but allow say RV's as temporary living spaces while the grace period to build is expiring. Many times the CCandR's also provide a time frame indicating a property which meets the architectural guidelines must be complete, then again, may times there is not timeframe. The primary question is whether you were provided an opportunity to review the Homeowners Association's #HOA#CC%26R's, financial position, procedure guidelines etc... PRIOR to the time in which you closed escrow on your land? If not there may be a representation or disclosure situation. There are statute of limitations on how long after closing or the time when an owner 'should have known' this clause existed. I recommend seeking an attorney with a real estate and HOA/CCandR specialty to represent you in this matter. At worst the attorney can confirm you have a case or not, then lead you in the appropriate direction. Begin by reviewing your CCandR's and identify the article and number referencing this situation. Note the date it was adopted. If it was prior to your purchase then there may be a disclosure issue, if it was after your purchase then you should have been notified of an annual or general/special membership meeting of the homeowners to discuss and vote on this item. If this was the case then there might be a procedural violation or quite frankly you were notified but did not attend the meeting. This is why in a Homeowners Association it is important to remain diligent in the goings on of your HOA and its board of directors. Please remember I am not an attorney therefore this is not to be considered legal advice rather it is real estate information that any experienced REALTOR should be able to provide. Ultimately, seek an attorneys advice immediately as there is a limitation of time. If you have any additional questions that arise please reply to this e-mail. - Todd Menard

---------- FOLLOW-UP ----------

QUESTION: Todd, thanks for the reply. The CC&rs were enacted in the 60s, and I was given a copy at the time of purchase. I did read them, and understood the term "house trailer" to refer to a perm  residence, not a RV. I have had the two different RVs since moving here, close to 4 1/2 years ago.

The real issue, as I see it, is the use of the outdated term "house trailer", and the fact that an exact definition of it is almost non existent.

I am old enough, 61, to remember when the term house trailer was common, and so was "travel trailer" the first was a reference to a residence that was usually found in a fixed location, usually a "trailer park", while the term "travel trailer" was for something used occasionally for
traveling/camping/recreation.

I have spoken to an attorney already, and he does not have anything concrete to say about it, which is why I am seeking additional input form the real estate knowledge base here at "All Experts"

I would really like to find a real estate based definition "house trailer" that will support my cause. I already have the Websters Dictionary definition, but apparently that is not good enough for the local CCR bunch.

Thanks.

Answer
Mike - I am so sorry I did not reply sooner. I  just learned of your reply, please accept my apology for the delay in my reply. Each state has different terms as well... such as in AZ we used the term 'mobile home' until the 70's when the appropriate term was changed to 'manufactured home'. The term 'certificate of affixture' determines whether the 'appurtenance' is connected to the property permanently, without this certificate the unit is moveable/mobile. I belive the attorney may have determined the costs of ascertaining the definition used in the 60's, when the term changed, and the cost to redefine the term to fit todays situation might not be costs effective.... therefore, not showing any interest. Your best bet may be to rally the troops, aka the homeowners as the terms of the CC%26R's extends to all homeowners. You can defray the costs to fight/change the terms amongst the group of homeowners rather than take on the burden solely. The word that comes to my mind is "INTENT", what was the intent of the wording at the time the CC%26R's were written? Arguing original intent and a current misapplication could provide a basis for the argument and consequent petition from the homeowners to change the old language to fit a more modern (today's) application. It is not difficult to do! Print some flyers and hand them out to the homeowners... tell your story, start with the homeowners that have a RV and once you have more than a few names on the petition you can expand the introduction to those who don't want to stigmatize their properties to future buyers that have RV's. You will immediately perceive other homeowners interests and whether the fight is a one man crusade or one of perceived property values. Finally, bring your petition to the next homeowners meeting and state your case. Remember the property management company/HOA Board works for you, the homeowners. They are not there to make interpretations that foster their personal beliefs but rather those of the members of the association. If you have numerous names on the petition and the HOA Board does not address the issue at least through a newsletter, general meeting, special meeting, etc, then it may be time to consider a new board of directors or community management company. - Hope this gives you some additional avenues to pursue. As far as the definition in itself, there is no blanket U.S. definition of 'house trailer'. Wish I could be more help. Please reply if you have additional questions. -Todd Menard