Rural Residential CC&R Considerations
Rural CC&R’s in Land Development
Rural residential land development projects have their own unique needs and the smart land developer must successfully address them for a project that produces top-dollar results. I always make it a point to remember that the buyers wants and needs are defined by them - not me. That’s important because they are the ones that are parting with money and the project has to deliver what they want. My goal is to fully understand what my buyers hot buttons are, then address them to the best of my abilities while protecting the overall interests of the plat and the investors.
Over time I have found certain commonalities in my rural buyers that have been recently addressed in my post What Rural Land Buyers Look For - https://www.landdevelopmentrealities.com/home/2020/6/5/test , but this post points to the creation of the best conditions for rural market appeal, while providing for the necessary developer control of the project. That’s done by clearly defining what is allowed and not allowed in the CC&R’s of my rural communities, along with the rules for owner compliance and consistent HOA enforcement.
I was originally going to make this a “do’s and don’ts” list, but there are no hard and fast rules. Since there are no absolutes, you have to consider the project layout, location, permit requirements, target market, overall market conditions and the budget. What you decide for your project is up to you, and in the end your potential buyers will tell you if you are successful as measured by lot sales and the satisfaction of existing lot owners. Having said that, here are some key things that I have consistently implemented in rural CC&R’s. Be advised that this is not a complete list, only certain areas that I consider to be key points of interest in a rural residential setting.
General Provisions:
I provide that the CC&R’s may be amended solely by the Declarant (me), until 100% of the lots of the plat are sold. (State laws vary on this point, so your state may require a turnover of the HOA to the residents at an earlier point).
After 100% of the lots of the plat are sold, the CC&R's may be amended by an instrument signed by not less than seventy percent (70%) of the owners of all lots of the plat.
Any amendment must be recorded and any amendments may not place more onerous restrictions for existing structures unless they are unanimously approved by 100% of the voting lot owners.
Invalidation, modification or amendment of any one of the covenants of the plat by judgment or court order will not in any way affect any of the other provisions, which will remain in full force and effect.
I tie in my recorded Easement and Road Maintenance Agreement(s) and make all of the lots subject to it and any future amendments.
Easements for installation and maintenance of utilities and drainage facilities are shown in the record of survey. Within these easements, I provide that no structure, planting or other material can be placed or remain that might damage or interfere with the maintenance of utilities, or could change the directional flow of drainage channels in the easements.
The easement area of each lot and all improvements on it are to be maintained continuously by the owner of the lot, except for those improvements for which a public authority or utility company is responsible.
I also provide for the additional right to make all necessary cuts and fills needed to modify slopes and road drainage to include modifications on or across any lot where the water might take a natural course.
After grading of the roads and roadways, no drainage waters on any lot or lots can be diverted or blocked from their natural course so that they discharge upon any road right-of-way or hamper proper road drainage.
I add language for access across any and all lots necessary for the control and management of the wetlands and associated wetland systems.
I also include control measures for any animal or plant species found to be interfering with the natural flow of the wetland system drainage (think beaver dams).
I also require owner acknowledgement that owners waive all protests regarding the control of plant and/or animal species, to include the use of herbicides, pesticides, traps or other methods of eradication.
Included is an acknowledgement that governmental regulations might require management of the wetland systems according to certain guidelines. The owners taking title to their property makes them subject, according to their ownership interest, to these regulations.
General Use Restrictions:
All lots must be used for residential purposes.
The Architectural Control Committee (A.C.C.) must approve all structures.
No building or structure can be erected until the primary residence is substantially completed.
Outbuildings must conform with the architectural design of the primary residence.
Outbuildings may not be placed forward of the front elevation of the primary residence (no front yard outbuildings), unless approved by the A.C.C.
Outbuildings must be placed in a location that will keep visibility to the other lot owners to a minimum.
It is the responsibility of the owner to verify if a permit is required by governing authorities and to obtain one PRIOR to commencement of construction.
Manufactured homes and/or non-site built structures, such as modular and manufactured homes are not allowed unless they are specifically approved by the Architectural Control Committee.
I always define what manufactured and modular means for the project.
No single wide, double wide, or triple wide manufactured homes are allowed.
Homes built offsite with stick built walls and attached garages (but are assembled onsite) are not allowed.
The primary residence must be set on a concrete foundation.
Dwelling / ADU Restrictions:
The primary residence must be a minimum of one detached single-family dwelling with a minimum of a either a double attached or detached private garage.
Dwelling size: I require that the total floor area for any primary dwelling shall not be less than 1,500 square feet of living area, excluding the basement, any porches and/or garages.
This may seem small to the reader, but many of my buyers are retired and do not want huge homes. My focus is on architectural appeal, not actual square footage.
I allow a guest house (ADU) ancillary to the residential home that can be used only for the temporary lodging of guests and/or family members of the owner of the main residential home.
Any ancillary guest house built by the owner cannot exceed 1200 square feet of living area.
Any dwelling or structure erected or placed on any lot in the subdivision must be completed as to external appearance, including finish painting, within nine months from the start of construction.
New Construction:
No structure can be erected, placed or altered on any lot within the plat until the building plans, with respect to the exterior materials and specifications has been approved in writing by the A.C.C, as to the quality of materials, including, color, harmony of exterior design with existing structures and, in addition, as to the location of the structure(s) on the lot with respect to topography and finished grade elevation as well as with respect to the buildings on adjoining lots. All locations and elevations shall be given complete consideration by the A.C.C, with regard to their effect upon the maintenance of the view and the property values of adjacent properties before final approval,
Dwelling Placement:
Dwellings and any other structures are to be located so as not to unreasonably interfere with the view of any neighboring lot.
View protection of lot owners is a key consideration. A key HOA/ACC focus is to protect the view of all lot owners.
No structure can exceed a height of 35 feet. Height to be measured from the average elevation of the finished grade and measured from the middle of the proposed structure to be built.
Placement of any structures on the lot is subject to approval by the Architectural Control Committee.
The Architectural Control Committee has the right to require a lot owner to physically indicate the maximum allowable height for the structure before construction actually begins.
Exterior Materials:
Roofing materials must be cedar shingle, shake, tile, composite, or 25-year composition, or better.
No 3-TAB composition roofing is allowed.
Metal roofing must be approved by the Architectural Control Committee.
Exterior building siding materials are to be nonplywood-type wood (beveled or grooved), vinyl or masonry.
Colored metal siding and roofing, with the exception of the ancillary guest house, is acceptable for outbuildings, subject to A.C.C. approval.
The exterior color of all structures, whether original construction or remodel construction, must be approved by the A.C.C.
Rural Allowances:
Owners are not prohibited from growing trees, i.e., tree farm.
Owners may keep domesticated animals or livestock for their own purposes so long as they do not become a nuisance and as long as they do not violate any governmental laws regarding care, housing, pasturing etc.
No animals shall be raised, bred, kept or maintained on any lot for any commercial purpose.
Adequate measures must be taken to ensure that all animals are confined within the perimeter of each lot.
Animal owners indemnify and hold harmless the developer, other owners, and the HOA from any and all damages caused to natural persons, personal property, real property etc. by their domesticated animals or livestock. This includes pollution, infection, contamination caused by their presence or the presence of their urine, feces, or dead bodies or body parts, medicines used to treat them etc.etc..
Landscaping / Fences / Hedges:
All front yard landscaping, if installed, must be completed within a six (6) month period of time from the date of issuance of an occupancy permit for the primary dwelling.
Fencing means any barrier or wall. All fences cannot exceed six (6) feet in height. Fences must be well constructed and cannot detract from the appearance of the development.
In no case will fencing be placed forward of the front elevation of the primary dwelling unless first approved by the A.C.C.
The type, materials and placement of all fencing requires prior approval by the A.C.C.
Construction Activities - Damage and Construction Debris:
All lot owners are responsible for any and all damage to street, ditches, storm drainage or any other damage resulting from construction activities.
All lot owners are responsible for providing clean up of the streets and construction site, resulting from construction activities.
If the owner does not clean up construction debris within three (3) days following written notice by the HOA, the HOA can proceed with the clean up and collect the cost of doing so from the owner through due process of law, including any applicable lien rights.
The HOA has authority to require an initial deposit of $500.00, refundable after occupancy permit is issued, as a construction damage deposit.
Driveways:
All driveways must be asphalt or concrete extended from the asphalt access road a minimum of 20 feet into the Lot.
Provisions must be made for drainage, and approved by the Architectural Control Committee.
Individual lot culverts are to be maintained by the lot owner, at owners expense.
Temporary Structures:
No structure of a temporary character-trailer, basement, shack, garage, barn or any other outbuilding can be used on any lot as a residence, either temporarily or permanently.
However, a trailer may be used on a temporary basis while a home is being constructed on a lot as long as the home is completed within nine (9) months from the beginning of construction.
Temporary structures must be removed no later than 30 days after issuance of the occupancy permit.
Trailers & Motorhomes:
Except as otherwise allowed, no lot owner may keep or permit to be kept on their premises or street area any house trailers, trucks (excluding pick-up trucks of one ton or less), campers, travel trailers, mobile homes, boats or boat trailers, unless housed within a garage or out of sight from the roadway and any residences located within the plat.
Off Street Parking:
All lot owners must provide for sufficient on-site parking and shall not allow any vehicles, at any time, to be parked on the roadway.
However, during construction of lot improvements, vehicles will be allowed to park in the roadway during normal business hours.
In no event, will the vehicles be parked overnight.
In no event will vehicles obstruct traffic on the roadways.
Vehicles in Disrepair:
Equipment or vehicles (including buses or trailers of any kind) may not be dismantled or repaired outside any building or residential lot.
A vehicle is considered to be in disrepair if it is not operable for a period of 48 hours in its present condition.
Antennas and Service Facilities:
All radio or television antennas, clotheslines and other service facilities are to be placed in a location on each lot so that they do not offend the owners of any other lot.
No visible radio or television antenna will be placed upon any lot exceeding a height of twenty (20) feet.
All exposed fireplaces shall be of brick or quarry stone material or the same as the exterior and specifically not cement block.
Business and Commercial Use:
No visible or audible trade, craft, business, profession, commercial or similar activity of any kind shall be conducted on any lot.
No goods, construction equipment, materials or supplies used in connection with any trade, service or business will be placed outside on any lot at any time.
However, any home builder constructing residences on any lot may store construction equipment on lots in the normal course of construction.
Offensive Activities:
No noxious or offensive activity will be carried on upon any lot or will anything be done that may be or may become an annoyance or nuisance to the neighborhood.
No lot shall be used in a way that unreasonably interferes with the other lot owners' right to the use and enjoyment of their respective properties.
Rubbish and Trash:
No lot will be used or maintained as a dumping ground for rubbish, debris, salvage, garbage, trash, equipment, cars, vehicles or other waste.
Trash, garbage or other waste will be kept in sanitary containers.
No yard rakings such as rocks, roots, dead grass and other materials accumulated as a result of landscaping shall be dumped on any other lot, streets or open space.
The proper removal and disposal of all such materials will be the sole responsibility of individual lot owners.
Burning:
No burning of trash, rubbish or vegetation except by county permit.
Domesticated Animals:
No domesticated animals shall be raised, bred, kept or maintained on any lot for any commercial purpose.
It is a violation for the owner or custodian of any dog, cat, and/or any other domestic animal, including any fowl, to allow such animal to roam, run, stray or be away from the premises of the owner.
This also applies and to any public place or public property, or the private property of another lot owner.
Any animal while away from an owners premises, must be controlled and/or adequately supervised by its owner or other competent person.
Any animal found roaming, running, straying or being away from the owners’ lot will be declared to be a nuisance and the animal may be impounded according to applicable county ordinance.
Signage:
No sign of any kind can be visible to the public on any lot except one professional sign of not more than one square foot, one sign of not more than five square feet advertising the property for sale, or signs used by a builder to advertise the property during the construction and sales period.
Native Growth Protection Areas:
All Native Growth Protection Areas or areas designated in the future through habitat management plans or governmental regulations shall be left in a natural state.
No clearing, grading, filling, building construction or placement or road construction of any kind shall occur within these areas.
Individual lot lines may be fenced by property owners, subject to the use restrictions.
Underground utility lines and drainage discharge swales may cross such areas by using the shortest alignment possible if no reasonable or feasible alignment is available which would avoid such a crossing, and all applicable laws are complied with.
Tree / Shrub View Preservation:
The preservation of the territorial views from each lot is paramount.
To preserve the view from each lot, no trees, planted by any homeowner shall be placed or allowed to grow that will restrict the view from any residence located within the plat.
Each lot owner is required to remove and/or trim any tree and/or shrub that unreasonably restricts the view from any residence located within the plat.
Existing Trees and Shrubs:
I have sometimes used the following section when I have a project with exceptional views:
In order to ensure that the view from each lot is preserved, and considering that existing trees and/or shrubs will continue to grow, an owner of any lot within the plat, at his sole expense, shall have the right to request that an owner of any other lot trim or top any existing trees or shrubs that unreasonably and adversely affect the view from his/her lot lying within the Plat.
This also applies to "natural vegetation" in the event that it unreasonably and adversely affects the view from any lot
The requesting owner shall be responsible for all costs involved in trimming, topping, and removing such trees and/or shrubs. The requesting owner shall be required to contract with a contractor that is bonded and licensed, as applicable, with the state.
The requesting owner must, before its contractor commences work, provide the owner of the lot from which the trees and/or shrubs will be trimmed, topped and/or removed, with a written report describing in detail exactly what will be done.
In addition, the rights of the requesting owner will be subject to the following rights of the owner of the lot from which the trees and/or shrubs will be trimmed, topped and/or removed.
The owner of the lot shall have the absolute right to require the trees and/or shrubs that are to be trimmed, topped or felled by the requesting owner's licensed and permitted contractor.
The owner of the lot shall have the absolute right to retain (personally keep) at no cost, any tree and/or portion of the tree that is topped, trimmed and/or felled.
The contractor hired by the requesting owner shall be required to clean all debris, except that which the owner requests to be left, from the owner's real property.
The intent of this section is to prevent the unreasonable obstruction of a territorial view and therefore trees shall not be topped if by trimming or limbing the view can be maintained.
Should the parties not be able to agree to the extent of the topping and/or trimming, then the matter will be submitted to a designated arbitrator.
Maintenance of Structures and Grounds:
Each owner will maintain his lot and residence in a clean and attractive condition, in good repair and in such a fashion as not to create a fire hazard.
Firearms / Explosives / Motorcycles:
No firearms of any kind will be used within the property except by appropriate government officials.
No bow and arrows, crossbows, blow guns or slingshots of any nature will be used within the property.
No use of explosives except by licensed contractors for permitted purposes.
Muffled trailbikes, snowmobiles and similar vehicles are permitted within the boundaries of the individual lots unless they become a nuisance.
Non-muffled motorcycles, motorbikes, trailbikes, snowmobiles or similar vehicles are prohibited on any portion of the property whether licensed or unlicensed.
Compliance With Applicable Laws:
Each lot owner(s) shall be responsible for compliance with all applicable federal, state, county and/or governmental statutes, ordinances and regulations, and any amendments relating in any way to the ownership and/or improvement of the lots within the plat.
Future Subdivision:
If I am doing a phased project or one that is adjacent, I include a no-protest covenant for my future development activities.
Example: No person or entity holding fee simple title to any lot within the Plat of XYZ shall protest the development of any property, presently owned or hereinafter acquired by the Declarant, its successors and/or assigns, within a ten (10) mile radius of the Plat of XYZ.
Architectural Control Committee:
The Architectural Control Committee will have the authority and standing, on behalf of all owners of lots within the plat, to enforce any decisions it makes as the Architectural Control Committee.
Upon the termination or expiration of the right of Declarant to act as the A.C.C., the owners of the lots in the plat will have the right to create a committee, to continue with the enforcement of the Covenants, if they so desire.
Any decision to continue with an A.C.C. is to be made at either the annual or special meeting. Approved decisions must require a vote of 51% of the owners of lots of the Plat.
Submission of Data to A.C.C.:
All applications to the A.C.C. for approval must be submitted in writing and will be supplemented by such supporting data as the A.C.C. shall require.
The A.C.C.'s approval or disapproval shall be in writing.
Submittals by the property owners will include, at a minimum, a plot plan, drawn to scale, reflecting the location of any and all structures within the lot and further, all elevations.
In addition, such application will specifically, at a minimum, list the type of exterior materials, including, without limitation, siding and roofing materials, as well as color schemes to be used in constructing the new structures as well as any renovations to the same.
Applications are to include specifications relating to any fencing the lot owner intends to construct.
Approval by A.C.C.:
In the event the A.C.C. fails to approve or disapprove within thirty (30) days after the receipt of any application or supplemental material requested by the A.C.C., approval will not be required and this Covenant shall be deemed to have been fully complied with unless prior to the completion of the building:
The lot owner has failed to comply with the plans, specifications, including without limitation, the location of any structure, as submitted to the A.C.C.
Arbitration has been requested to enforce these covenants as provided for.
Address of submittal:
The applications, referenced above, shall be submitted to the A.C.C. in care of _________________________, or such other address as the A.C.C. may designate in writing to all lot owners of lots within the plat.
The application will include the mailing address at which the lot owner can be notified of the A.C.C.'s decision.
It is the sole responsibility of the owner to inform the HOA / ACC, in writing, within 15 days of any address change.
Conclusion:
Remember this is a partial list and in no way is applicable to any specific project except the one it was originally used for. It can easily be seen that an attorney is required for the correct drafting, not only for completeness, but also for compliance with all governing laws.
Now, a word on enforcement - all of these covenants and stipulations are work to enforce. I keep control of my projects, as the Declarant, for longer than some developers might. This means that I have lived these rules with lot owners (many times for years) and it’s not always easy.
A harder situation would be sloppy enforcement. If I let one guy slide on an issue, how can I deny the other guy when the time comes? An everyday working knowledge of each specific term in the documents is required and consistency, tact, and a firm hand is needed to protect the collective group.
Work with your attorney to be smart, thorough, and wise in the drafting of the documents and consider every provision to make sure consistent enforcement is practical. Your lot owners deserve it, and will rightfully expect it. Good luck!
