Saturday, February 21, 2015

I Need To Pick Your Brains

The neighbor down the hill from me in this subdivision has applied to the county planning department for permission to rent out his house for wedding receptions and reunions.  The CC&Rs for this subdivision prohibit any non-residential uses.  This should be a slam dunk, the county should not issue a use permit in conflict with the CC&Rs.  However, other property owner here insists Idaho law does not allow enforcement of CC&Rs that have not been enforced in the last seven years.  I am quite sure from looking through the court cases that this is wrongm and it would render CC&Rs completely meaningless.  Does anyone know anything differently?

The guy who wants to rent out his house for wedding receptions built a 5000 square foot house that he has been trying to sell for many years, asking upwards of a million dollars.  I think he got in over his head in the early 2000s real estate boom, and now can't sell the house.  I'm soory, but I didn't build here to have traffic jams on the shared single lane gravel road, loud bands, and drunks vomiting on the hillside.  What other sorts of wedding receptions are there?

The other property owner who claims CC&Rs have an expiration date is trying to sell his house, and has listed it as having no CC&Rs, so I think I can see why he wants to think this.

UPDATE: A couple of readers hjave asked if ScopeRoller violates these CC&rS.   I don't think so, so I went looking for definitions of "residential use" and I found this:
Something that is deemed “for residential use” is designed for use at home or rather than for business or commercial use.
and this:
 Describing an area primarily used for housing
 ScopeRoller is a few hours a week in a building that is primarily used for housing.  I think I am safe.  If my neighbor intended to live in his house and use it occasionally for wedding receptions, he would possibly be okay.


  1. IANAL, but I'd guess it's akin to adverse possession ("squatter's rights"). I.e. suppose this guy had been renting it out for wedding receptions for the last 7 years and a day? If no one had objected to it during that interval, it could make sense to nullify the CC&Rs WRT to that particular violation.

    As you say, his interpretation would nullify the CC&Rs altogether, so if they have any legal meaning today, it's vanishingly unlikely the interpretation is correct.

  2. I don't know Idaho law but it sounds like he is confusing a laches doctrine with an expiration. CC&Rs don't expire but if a violation of them continued for some time without a neighbor bringing suit to enforce, I could see a court using a latches doctrine to decide not to enforce.

    "Latches" is to equity what statute of limitations is to a civil claim. To oversimplify.

  3. The guy offering his house for scale claiming no CCRs is going to be sued when a sale falls through because of his misrepresentation. CCRs being obviously a matter of public record.

  4. Regardless of whether the CC&Rs are enforceable there is probably some way you can oppose his application to the county planning commission. How big is the subdivision? The more neighbors you can get in opposition the better.

    As for the other guy, if he has listed his property with a real estate broker, you could call up the broker and inform them that there are CC&Rs. This could make the broker potentially liable to a buyer for an inaccurate listing if they don't do something about it.

    Of course in both cases you have to consider how willing you are to get in disputes with your neighbors.

  5. Where does selling telescopes fall in the spectrum here?

  6. It sounds like you need a conversation with a local who is an attorney, with a practice particular to real estate in your county.

    There's something in real estate law dealing with a neighbor's actions which impact reasonable use of your property, I can't remember the legal term, but your local real estate attorney will. I'd think the impact of substantially increased traffic on your road would count in that regard, not to mention the maintenance costs impact of 5X-20X traffic on a road not designed for that volume.

    IIRC, there's also something RE: "attractive nuisance" that might open either or both to civil damages. Sounds like both are trying to salvage seriously underwater positions, though, so winning a judgement where there's no money is of little value.

  7. Larry: ScopeRoller generates no traffic and no externalities.

  8. Usually such restrictions are made severable, so that only the particular covenant that hasn't been enforced is rendered ineffective, but the other covenants stand. So unless someone else has been holding weddings for years without any action against them, his argument doesn't hold.

    But sometimes the only actual enforcement action available is filing a lien against the property, which only has teeth when the property owner wants to sell. But it will be a problem then.

    Our usual issue is people who want to subdivide lots to smaller than the covenants allow, and they always lose, regardless of how much hardship they claim.

  9. While I'm not an Idaho attorney, the idea that an agreed upon restriction becomes unenforceable if not enforced for "X" years doesn't strike me as correct (seven years is a typical length of time for adverse possession, so there may be some confusion on your second neighbor's part). CC&R's are contractual rights. Moreover, has the neighbor been hosting weddings at his house for the past "X" years? If he has not, then the whole unenforceable argument falls apart. Why would anyone enforce a restriction that isn't being violated? That being said, I'm not as sure as you are that the government won't issue a use permit that violates the terms of the CC&Rs. Your recourse for violation of CC&Rs lies in contract. It's not the government telling your neighbor that he cannot use his house for commercial purposes -- it's the CC&Rs which are privately negotiated. You should review the CC&Rs to determine how they anticipate conflict resolution.

  10. "prohibit any non-residential uses."

    "Where does [manufacturing and] selling telescopes fall in the spectrum here?

    1. I don't have any traffic coming into subdivision, nor does the manufacturing generate any noise.

  11. "prohibit any non-residential uses" does no mention the amount or horse-mounted or any other kind of traffic.

    Doesn't mention traffic at all.

    Interesting what you learn about people you decided to trust.

  12. No one has complained, nor have I needed any zoning changes.

  13. A definition of residential use that I have found": residential

    Describing an area primarily used for housing"