CC&R's conflict with city setback rules-which takes precedence?

[Ed B.]

I just ran into an interesting situation. I just got  remodeling plans approved by the city, and they gave me a permit, but I was just notified that my plans are in violation of the CC&R's.

CC&R's have a setback requirement of 25 ft.

However, the city's building regulations only require  a setback of 20 ft.

Which set of rules takes priority?  The CC&R's (enacted some 50 years ago), or the city's rules?

Thanks for any info. from anyone who has experience with this!

[Matt Devincenzo]

You're looking at this incorrectly, they aren't in conflict. One (the City) is zoning ordinance....it's rule of law, the other (CC&R's) are restrictions you agree to when you purchased.

It's like being 16 with your license, and the State driving curfew is 11 PM, but your agreed with Mom that its 9 PM since she bought the car. Which one rules? If the cops pull you over, the State, but you better believe you come home at 9:30 Momma's gonna take the car away. 

The City giving you a permit means they'll allow you to build, the private stuff is separate (though still applicable). I'm working on one now with a private "view restriction" agreement. The City will allow a building up to 28' high and we could get a permit for that pretty easily, but if we exceed 14' over the front 56' of the lot the neighbor will be suing for the encroachment into his view. So the second story doesn't start until 56' behind the property line.

[Ed B.]

Understood, Matt, but it was my understanding the city building dept. is supposed to make sure plans comply with the city's rules and any recorded restrictions.

[Bryan Hancock]

The bureaucrats at the city don't review the CC&Rs.  That's your job as the developer.  Your architect should also review them to ensure that you're complying with them.  Building something that violates the deed restrictions is likely asking for a lawsuit.  You may be able to get away with it, but it is a huge contingent liability.  if a neighbor decides they want to sue because you violated the deed restrictions what will you do at that point? 

[Bill Gulley]

CC&Rs are placed on title as a restriction by a seller, developer, HOA, or by consenting owners of a subdivision or community. They are not laws but made by agreement as to the conditions of sale and/or use that run with title. A breach of such restrictions is a civil matter between the group administrating the areas or the party that placed the restriction and the violator.

Those covenants, conditions and restrictions that violate current law are not enforceable. Any CC&R that conflicts with statute or ordinance won't be enforceable. An HOA restricts homes to no more than 2 outbuildings, the city comes along and says no home may have more than one outbuilding on its lot. The city has police powers, the HOA does not, the city governs. If the city were to say no more than 3 outbuildings, the HOA is more restrictive and it governs.

Deed restrictions have been made that are now in violation of Fair Housing Laws, restricting ownership to those of a certain race, religion or some group (with exceptions) and such are no longer enforceable. :)    

[Eric Army]

The most stringent rule wins, whether it's federal, state or local!

[Wayne Brooks]

The CCR's are enforceable, even if they are more restrictive than the city, period.

[Fred Heller]

The HOA rules prevail.

Think of it as a private contract between you and the HOA. As long as the HOA rules don't violate federal, state, or local laws, they will be enforceable

Not giving legal advice.

[Ed B.]

Thanks for all the info. from everyone about CC&Rs. I think most people are at least vaguely aware that CC&R's are likely a part of many if not most Condominium, PUD, and similar homogenous type developments. More pernicious are the CC&R's that are part of neighborhoods where all the houses are different, where the only way to discover them is to do a deed search. And even then it's no guarantee. I recently asked a title company rep to tell me if there were an CC&R's for a particular lot. The rep reported back to say there were none, when in fact there were some. Many CC&R's were recorded by the developer with well-meaning plans to also have architectural committees and other owners appointed to oversee compliance. As years pass, and the original developer and/or lot owners lose interest, die or move away, new owners are often ignorant of the CC&R's or don't care about following them for whatever reason. The risk to the new owner contemplating any type of remodeling, landscaping or decorating, is that one or more of the original owners are still around with an intimate knowledge of the CC&R rules-and cares enough to enforce them. Even a second or third generation owner can cause problems if he's aware of the CC&Rs and chooses to enforce them.

I'd be willing to bet that a large number of owner-builders have no idea of the mine-field that awaits them because of CC&Rs. And that the majority of the time these owners think that as long as they city or county approves their plans and issues a building permit, they are good to go.  After all, that's why people get permits in the first place, to make sure everything complies with  the  "rules and regulations," right?

Sadly, it's not quite simple.  Cities do not enforce CC&Rs but at the  very least they should be warning owner-builders that they may have to comply with CC&Rs.  Some municipalities do a better job of this than others.   It would be very easy for each city planning department to remind applicants to check for  CC&R compliance before submitting their plans. My city didn't do this, and  I only discovered the CC&R violation after I'd spent about $4,000 on plans and permits. As I told the guy at the planning dept., my plans never should have gotten as far as they did if there was lurking CC&R violation. I didn't know about it, because I was ignorant and naive, but city planners are more knowledgeable, and should have a duty to advise applicants to check for CC&Rs.

So, here are the steps I'd recommend others following when applying for  building permit:

1. Check for CC&Rs or other type of deed restrictions that might be on the property.

2.  Apply for a building permit. Do not spend any money on plans until the planning Dept. approves the general concept of your building project.