Homeowner’s Associations and CC&R’s seem to be one of the Hot Topics in real estate, especially over the past couple of years. I don’t want to wear out the topic, but it is important to address some of the questions that people have, especially locally.
For the record, I am for Homeowner’s Associations in most circumstances and agree that in some situations they don’t belong. Many people buy property within existing developments because of the covenants, rules & regulations in place. While it may not be expressly stated that the covenants are the reason for the purchase, it is usually as a result of those within a community abiding by the requirements set forth in these documents. Uniformity, style, there are a dozen reasons why these covenants makes sense.
On the flip side, there are communities in areas that have not had, and likely never will have CC&R’s or development restrictions. Usually, if it’s not within a development such as the core towns like as Driggs and Victor, it can be part of the appeal for some. I always chuckle hearing the sounds of clucking chickens in town, and seeing the great diversity in construction style in these “downtowns”, but it’s also what makes these towns charming.
So, getting back to the topic here. I’ve run into a few circumstances lately where even though I thought understood how the CC&R’s were written, I learned that many Homeowner’s Associations had interpreted these documents differently. While I think there may be an argument in many of these cases, some potential buyers don’t want to argue with the Associations regardless of whether or not they think, or anyone else thinks that they’re interpreting them incorrectly.
One of the most popular examples would be short-term rentals. Most CC&R’s do state that homes shall be used for residential purposes only. There are few exceptions that state home businesses can operate with conditional-use permits from the County, but again, most of them have this generic language. Most case law, (from what I understand many in Idaho) suggests that short-term rentals are not considered commercial businesses. Unless these documents specifically state that short-term rentals are not allowed, it is my opinion that Idaho would rule in favor of allowing rental types, both long-term and short-term.
Another example I ran into recently would be livestock and horses. The CC&R’s in this particular case stated that livestock would be allowed as long as it did not create a nuisance, but after contacting and understanding the Homeowner’s Associations interpretation, I was informed that livestock, nor horses would be allowed. I think there may be an argument here, but I’m not sure this would hold up in court. Here again, unless someone already owns the property and wants to argue, most buyers don’t want to prematurely go down this road, they would rather just find something else.
The second example might be a little bit harder to argue in the case of the association or the potential buyer, but much information I reviewed suggests that homeowners associations should specifically state what is NOT allowed as opposed to stating what is, or at least in my opinion.
As tensions rise over some of these issues in the future, I believe that homeowners association should take an active role in reviewing their CC&R’s and perhaps a mending some of the language so that it it is ambiguous while it is still relatively easy to amend these documents. Mini development today have owners of multiple lots, and very few homes in them. It’s easier to address some of these issues today as opposed to arguing with homeowners and buyers down the road, especially as population grows.
Note: the following information is a culmination of opinions from local professionals (including my own), none of which whom are attorneys. The below information should be verified with legal counsel in the event the information is to be used in real-world application.