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My HOA wants to block my building accessory apartment

My HOA Declaration and By...

My HOA Declaration and By laws have no language that prohibits development of an accessory apartment. Can my Board stop me just because they think "single family houses" means no accessory apartment? I was first to move in here 4 years ago and had the walk out basement pre-plumbed with the intention of developing an accessory apartment. I have a zoning permit, have talked to the builder who wrote the original language in the Declaration, and passed it by my lawyer. All say there is no prohibition to my doing this project. Does HOA have power to deny this when there is no language to prohibit it?? They seem to be applying rules they don't have yet.

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Answered in 14 minutes by:
7/28/2013
Legalease
Legalease, Lawyer
Category: Real Estate Law
Satisfied Customers: 16,388
Experience: 13 years experience in RE Law, including LL/Tenant, contractor disputes, comm'l prop. issues
Verified

Hello there.

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While there may be no language in the HOA preventing this and you are technically correct in your approach that an accessory apartment will not change the building from a single family residence -- if you are planning on renting that apartment out to any person instead of just having a family member reside in the apartment, then you may run into trouble with the generally recognized legal definition of a single family residence. Once you start renting out such an apartment to family, friends and the general public then you are changing the characteristics from a single family residence to at least a 1.5 family residence and if that is not the description that is set forth in your HOA documents then I do think that the board might have a case if they were to sue you to prevent you from renting out the apartment for any kind of profit on a monthly basis. However, if this will be an in law apartment that does not change the character of the house from a single family residence and no profit is being made from the general public by renting this apartment out to any person who is interested, then you are probably withint the guidelines of the HOA conditions. I think that this is an argument that may escalate quickly if your intention is to rent this apartment out to make some additional money every month. As I am sure your lawyer has explained to you in these situations, what is written into the HOA documents are the rules and can be enforced by the HOA -- and the definition of single family residence is not unclear -- if part of your family is using the apartment then it is probably legally acceptable.

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Please let me know if you have further questions.

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MARY

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Legalease
Legalease, Lawyer
Category: Real Estate Law
Satisfied Customers: 16,388
Experience: 13 years experience in RE Law, including LL/Tenant, contractor disputes, comm'l prop. issues
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Customer reply replied 4 years ago

From my reading of a number of definitions of "accessory apartments" in various Vermont towns, it is "clearly subordinate and incidental to a principal use of the single family residence." They still call it a "single family residence." Do you still stand by your answer?

Hello Wendy --

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Actually I do stand by my assessment -- but that is what I have seen and dealth with in MA, CT, RI and NY -- the definition could be slightly different in VT and my assessment may not be the correct one here -- that is why listening to your local attorney is the best way to go. However, I simply gave you what I have run into regarding what a single family residence means in communities in the many different states that I have worked in and I do not mean to throw a damper on your plans -- I simply told you all of this because I want you to be cautious -- if the HOA does NOT want you to do this then they are going to try everything that they can to stop you -- either before construction (although I do not think they can based on their language) or after construction (where I think there may be a problem with actually renting out the apartment to third party non related renters). I only hope that my assessment helped you to consider other angles and perhaps be prepared to deal with them as they arise.

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MARY

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Legalease
Legalease
Legalease, Lawyer
Category: Real Estate Law
Satisfied Customers: 16,388
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Experience: 13 years experience in RE Law, including LL/Tenant, contractor disputes, comm'l prop. issues

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