Real Estate Law
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Our recorded deed restrictions state that the minimum heated-square footed for any house in our community is 1,800 sq ft. It also states that the maximum fence height if 6 feet. Our unrecorded ARB Guidelines read that the minimum heated-square footage is 2,000 sq ft. and that the maximum fence height is 4 feet. The ARB Board says they will go by the ARB Guidelines and not the recorded deed restrictions. As a member of the HOA Board, I believe we should follow what is stated in the what is stated in the recorded deed restrictions and believe we would we be held negligent in not doing so. You are 100% correct
This actually becomes a land use issue as the recorded deed restriction are the restrictions that MUST be followed.
The deed restrictions are recorded against the land and stay will the land, unless or until they are terminated, amended or lifted. If you don't follow the deed restrictions that would be a the breach of the recorded deed. Governing documents can be amended. Since there is a discrepancy you would want to follow what was actually recorded. There is a process to amend the recorded deed restrictions is it a little more cumbersome. You are correct in this situation and the rest of the members should follow suit or go through an amendment process.
The Laws that govern an HOA or Property Owners Association in SC are the following:
Homeowner Associations are governed by a chain of governing documents and laws.
South Carolina State Laws
They are listed in a specific order for a reason.
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