Attempting to build the home without the committee’s approval could result in a court action (a petition for injunction) ordering you to halt construction or even to raze any completed or partially completed structure.
Ths type of legal action can be initiated by any lot owner in the subdivision, or by the home owners’ association on behalf of the lot owners.
However, the authority of an architectural review committee does have its limits.
The committee must adhere to the standards specified in the subdivision covenants. These covenants are recognized as enforceable, but restrictions on land use are not favored by law.
Covenants are narrowly construed by the courts, and doubts about their application are generally decided in favor of the lot owner.
You should examine your subdivision covenants to find out the committee’s standards for approving a plan. If there are no standards, if the standards are vague or ambiguous or if the standards are contradicted in the disapproval of a plan, then you may be able to successfully contest the committee's decision. You can do this through an appeals process (if one is provided), or through litigation.
Statutes in some jurisdictions (but not all) allow you to recover attorney’s fees and costs for successfully challenging subdivision covenant restrictions in court.
Also, the architectural review committee cannot be overly subjective in its determination, show favoritism to certain lot owners or engage in arbitrary and capricious decision making.
The fact that there are several homes within the subdivision boundaries that are similar in style and appearance to your proposed plan could suggest that the review may have been overly subjective.
But be aware that the original developers who drafted and recorded the subdivision covenants may not have included their retained lots in the deed of subdivision dedication, or may otherwise have exempted those lots from the covenants.
In that case, the original developers' lots may not be restricted by your subdivision’s covenants, and the style or appearance of the homes built on them is not pertinent to the architectural committee’s considerations. A title examination may be necessary to determine the applicability of the covenants to the original developers' lots.
Since there are many technical considerations involved in your situation — including a review of the restrictive covenants, a title examination and an assessment of your legal position in possible litigation — you should consult with a local attorney.
If you have questions for Ask the Lawyer, click here.
There is no guarantee that your question will be answered in this format, so if you have a particular legal concern that requires immediate attention, contact the NAHB Legal Research Service at 800-368-5242 x8491.
This information is provided as a service of the NAHB Legal Action Committee and NAHB Building Products Issues Committee. The information is intended to familiarize you with the law in this area. It is not intended to be an exhaustive presentation of legal information on this particular subject, and in no way constitutes an opinion of law. Your own attorney must review this information to determine how it may apply to your particular situation.
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