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Buying or Selling a Home/Amendmants to HOA Convnants

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Expert: - 3/13/2010


Question
When I purchased my new home in Delaware last Oct. 2009, I signed a form stating that I received a copy of the HOA Covenant Rules and Regulations. And I did in fact receive a copy of the covenant.

In that covenant I am allowed to erect a fence on my property.

The HOA is still governed by the builder, and in an ARB meeting today, the builder indicated that he was going to amend the current HOA Covenant to eliminate fences on a homeowners property.

I want to build a fence. Will I be grandfathered under the covenant that was given to me at the time of contract that allows me to build a fence, or will the amended HOA covenant take precedence over the old covenant which eliminates fences ?

Answer
David - HOA can only enforce what the CC&R's indicate and only in accordance with their policy manual. If the builder desires to amend the CC&R's that may take some time. If you present to the architectural committee your plans for hate fence and the current CC&R's don't forbid such then you should be able to proceed at this point. If your plans are blocked inappropriately by the builder then you should contact an attorney to counsel you on your position. Another possibility is that you could contact a local television station who may listen to your story and investigate this report. Usually this entails negative visibility to the builder which is opposite of what they want. As of today, you have the right to construct your fence providing that it meets the requirements of the current HOA CC&R's. Grandfathering would be used after your fence is erected and the CC&Rs changed, then your fence is grandfathered where new homeowners are unable to construct the same or similar. In this case, time of purchase does not supercede modifications to the CC&R's, so time is of the essence in the construction of your fence. If the HOA CC&R's are amended prior to your fence is 'approved' by the HOA/Architectural Committee, the CC&R's will take precedence. All you need is the approval from the HOA... the actual construction can be over a specified time period whereby even if the code changes your fence would be grandfathered. I hope this assists you with your endeavor. Please reply if you need further assistance.  

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Todd C. Menard

Expertise

National Association of Realtors Code of Ethics and Professional Standards * Contract Questions: 05/05 Arizona Real Estate Purchase Contract, Exclusive Buyer Broker Contracts, Listing Contracts and associated contract documentation as it relates to boilerplate, covenants, contingencies, procedures and procedures. * ARMLS Arizona Regional Multiple Listing questions * Real Estate Professional Standards and Practices, Ethics, Obligations, Duties * Agency relationships in Arizona, Procurring Cause * Questions typicaly arising during the listing period * Questions typically arising during the escrow period * Questions about working with a real estate agent/REALTOR * Questions Related to New Home Builders

Experience

National Association of REALTORS Board of Director (2011) Arizona Real Estate Salesperson License (1991-1995), Arizona Real Estate Brokers License (1995-Present), Arizona Association of REALTORS Board of Directors (2008-Present), Arizona Association of REALTORS Professional Standards Committee (2008-Present), AAR Certified NAR Code of Ethics and Professional Standards Instructor, Southeast Valley Regional Association of REALTORS President-Elect (2011) Southeast Valley Regional Association of REALTORS Board of Directors (2008, 2009), Southeast Valley Regional Association of REALTORS Grievance Committee Chairperson (1998-2007), Southeast Valley Regional Association of REALTORS Bylaws Committee (2008-Present), Southeast Valley Regional Association of REALTORS Education Committee (2008), Arizona Association of REALTORS Forms Committee - Residential Purchase Contract (2005), Arizona Association of REALTORS Forms Committee - Residential Rental Agreement (2008), Arizona Association of REALTORS Forms Committee - Buyer Broker Agreement (2009), Arizona Association of REALTORS Presidents Advisory Group, Road to Professionalism (2009), Arizona Association of REALTORS GRI Curriculum Review Committee (2009), Arizona Department of Real Estate, Commissioner's Education Advisory Group Sub-Panel B (2010) Arizona Department of Real Estate, Commissioner's Statute and License Review Committee (2007)

Organizations
National Association of REALTORS, Arizona Association of REALTORS, Arizona Real Estate Educators Association (AZREEA), Arizona Regional Multiple Listing System (ARMLS), American Notary Association, Southeast Valley Regional Association of REALTORS (SEVRAR), Southeast Valley Regional Association of REALTORS Women's Council of REALTORS (2010-Present), Phoenix Association of REALTORS (1994-2000, 2005-2009), Scottsdale Association of REALTORS (1994-2000, 2005-2009), Maricopa/Glendale Association of REALTORS (1994-2000, 2005-2009),

Publications
"Real Estate in 2008"- Lifebushido Publishing (Contributory Author), SEVRAR Magazine, Internet Crusade, RealTown ListServe, Blogger.com, Active Rain

Education/Credentials
- AAR Certified Ethics and Professional Standards Instructor, Graduate REALTOR Institute (1993), Certified Negotiation Expert (CNE), Over 100 Hours of annual real estate continuing education, Annual Ethics and Professional Standards Development Workshops as required by the National Association of REALTORS, Approx. 36 hours of NAR Code of Ethics training annually, Numerous IDW, Seminars and Train the Trainer programs, Business Management Degree - 1981

Awards and Honors
2009 REALTOR of the Year Award, Southeast Valley Regional Association of REALTORS (10,000+ Members), Double Platinum Production Award ($45,000,000 Sales Volume)- Keller Williams Realty Int'l (2001), Top 15 Sales Production Keller Williams Realty International (2001), Top 5 Sales Producation Keller Williams Realty Southwest Region (2001), Top Recruiter Award - Keller Williams Realty Int'l, SW Region (2002), Who's Who in U.S. Executive (1983), Who's Who in U.S. Real Estate Professionals (2007)

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