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Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 6198
Experience:  28 years of experience in General Practice, Real Estate Law and Estate Law.
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Our recorded deed restrictions state that the minimum

Customer Question

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 recorded deed restrictions and believe we would we be held negligent in not doing so. We are in SC and are governed by the Non Profit Corporation Act. Your Thoughts ??
Submitted: 7 months ago.
Category: Real Estate Law
Expert:  Attyadvisor replied 7 months ago.

Welcome and thank you for your question. I will be the professional that will be assisting you.

Expert:  Attyadvisor replied 7 months ago.

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.

Expert:  Attyadvisor replied 7 months ago.

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.

  • The Articles of Incorporation filed with the Secretary of State provide the legal basis of the association in the form of an Incorporated Non-Profit Corporation.
  • The recorded map or 'plat' defines each owner's title to property including the association's title to common areas.
  • The CCR's (Covenants, Conditions, and Restrictions) are publicly recorded deed restrictions.
  • The Bylaws are the rules for management and administration.
  • Resolutions are additional rules and regulations that the association may adopt.
  • Federal Laws also apply. Some but not all include the The Fair Housing Act, Internal Revenue Codes, the American Disabilities Act, the Virginia Graeme Baker Pool and Spa Safety Act , the FCC OTARD Rule (Over the Air Reception Devices - Satellite Dishes) and the Fair Debt Collection Practices Act.
  • Information regarding State Laws specific to common interest communities such as condominiums, cooperatives, and homeowner associations are provided below and in the FAQ section of the Resouce Center. In addition there are typically additional state laws that are not specific to Common Interest Communities which require compliance. Some examples include stormwater runoff, coastal development, elevator inspections for condos, and pool operations to name a few.
  • Local Ordinances, while not specific to homeowner associations, apply to building codes, animal control, abandoned cars, water restrictions, etc.
  • Additional legal regulations can exist in the form of case law; standards set by professional organizations such as accountants, engineers, architects, home inspectors, and real estate brokers; as well as lender requirements.

Considerations:

  • State laws affecting Common Interest Communities vary widely.
  • Bills affecting Common Interest Communities are frequently being introduced in state legislatures and may be in different stages of consideration, approval, or enactment.
  • It is not uncommon to find conflicts within or between governing documents such as the covenants and the bylaws. There may also be conflicts between governing documents and statutes. When this occurs, attorneys must often consider applying Rules of Intepretation.
  • Because of the wide variance in state laws, constant changes and possible conflicts in governing documents or statutes, it is strongly recommended that association boards and members seek legal counsel and especially with firms that have expertise or strong practice experience in the area of Common Interest Community law. A good starting point is to check the HOA-USA Partner Directory for your respective state.

South Carolina State Laws

  • Nonprofit Corporation Statutes generally apply to any incorporated Common Interest Community.
    The Nonprofit Corporations Act (SC ST SEC 33-31).

 

They are listed in a specific order for a reason.

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Expert:  Attyadvisor replied 7 months ago.

Please do not hesitate to ask me any additional questions that you may have with regard to this matter. It would be my pleasure to continue to assist you.

Expert:  Attyadvisor replied 7 months ago.

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