Grandfathered deed restrictions

by Michele

Visitor Question: There is a 450 square foot home in a neighborhood where the homeowners association (HOA) just updated deeded restrictions on house size to require 1200 square foot. The owner used it for a rent house. Now the owner is selling it. If a new owner purchases the house, do they have to use it for renting in order for it to continue to be grandfathered in? Or does a change in owner, or change in usage void grandfathered deed? Also the house is movable. It is not on a slab.

Editors Respond: The answer to this question, as to many other deed restrictions we receive, is that it depends on actually what the covenants say.

In the first place, it is somewhat unusual to associate the concept of grandfathered structures with deed restrictions. However, if you are sure that this particular structure was exempt from any minimal square footage restrictions when the covenants were set up, you still would have to read the exact wording to know whether this exemption carries forward if the HOA changes the covenants. It seems somewhat likely that if this structure preceded the original HOA formation, it is still exempt, but you have to read to make sure.

As for the matter of tenancy type (which means whether or not it must be owner-occupied, or can be rented), again you have to look at the exact text of the covenants. Do the restrictions allow renting of properties? If so, it is probably fine for the new owner to either live in it himself or herself, or to rent it out. But again, the wording governs.

The story is the same regarding whether the home must be attached to a foundation, or whether a mobile unit is acceptable. Do your current covenants permit a mobile unit to be brought in? If so, most probably the older unit is fine. If not, you will have to read the wording closely.

If you are the owner or prospective new owner, we suggest a candid chat with the most knowledgeable person on the HOA board that you can find. What is their thought about all three of your questions? If there is an active HOA, the board is the most likely person to complain and request enforcement of the covenants, so it can be helpful to know their view.

But also if you have an ownership interest in the property, or are considering buying it, your safest course of action is reading the covenants yourself thoroughly, and then consulting an attorney licensed in your state if there is any doubt whatsoever about what you have read.

Sorry we cannot give you a hard and fast rule about any of the questions you asked, but the moral of the story is that covenants in master deeds must be carefully analyzed since they can say virtually anything that has not been ruled entirely illegal (such as prohibition of a particular race, for example).

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