Don't sign. Why should you? You and others followed the setback requirement it seems. Why shouldn't your errant neighbor?

If he takes the lack of a variance to court it will be him vs. the city or county who have jurisdiction.

Good luck with your project.

Just bizarre that something like this can happen. When I built my foundation, the city building inspector required a form board survey before green tagging the foundation before the concrete was poured.

They don't check something that critical in your jurisdiction?

If they don't get a variance, I believe they'll have to demolish the structure...

I'd not sign it... Not without significant compensation. They can't take YOU to court for the variance. They have to take the municipality to court for the variance...

I would not sign. They screwed up and it's their problem. I could see if it was a small mistake like a foot over the line, but 30' is a significant overage and can affect the entire community if it sets a precedent.

I wouldn't sign. With any luck, they'll take a loss and move away.

If their threats of taking you to court are making you consider signing, I'd talk to a lawyer before I acted on that worry. I'm not a lawyer, but I don't think they can sue you for failing to agree to this.

I would also call the local building authority and make sure they are aware that building is continuing, I believe the builder ought to get in trouble for that-- the builder needs to follow local codes, that's what he agreed to do when he pulled the permit- he doesn't just do whatever he is paid to do.

They now have to get everybody's signatures to file for a variance. Well they have been anything but tactful in their approach. They have been rude and extremely arrogant continuing to fund the build even after their funding had been cut and were suppose to cease construction until the variance had been approved.
... they are way over the line legally and socially with their attitude.

I wouldn't sign, and I would encourage the neighbors to not sign - they are wrecking your planned view, that depended on them respecting the setbacks.

They are continuing to build, and then will say "But the house is almost finished" when they apply for a variance. Go take pictures: mdocument the "we're special" attitude - they know they need to weait for the variance, and it's going to really annoy the zoning p[eople that they are continuing to make a violation worse.

Considering the acreage and the vineyard that you paid for, this is a really big deal. It's not like you are upset over one or two feet and a podunk view being blocked. They are waaaaay out of line literally and figuratively. Also, think about the future and the problems that can arise. I would not sign. Surely they won't take this to court. They would lose!

The sooner you speak up the better. Otherwise they will face more demolition. What a shame that you are going through this. They sound very lousy!!!

Why am I reminded of In Broad Daylight?

Refuse to sign. If the neighbor files suit against you for refusing to sign their request for a variance, the suit will get thrown out of court. There is no jurisdiction anywhere that recognizes a cause of action against someone for refusing to agree to give you something that you have no legal right to in the first place! Don't give in to this bully!

Don't sign. And contact the local codes office to be sure that they are aware that work is continuing on the project. They should have issued a "stop work" order and all work on the site should cease. That's a MUCH bigger deal than losing funding from the bank for the violation. They can be fined and forced to comply and you will have nothing to do with any of it.

The bigger question is how they have been receiving inspections and approval for the work so far. They shouldn't have even received a building permit if the home didn't comply with setback requirements! I'd get together with the other property owners and find out how they managed to skirt the requirement from the beginning. If their home is violating local zoning requirements, and no variance was issued, something somewhere is rotten. Perhaps an investigative journalist might be interested in who received a payoff for that to happen.

DON'T SIGN! You've received good advice. If they also plan on violating the deed restrictions, you know these people are going to be awful neighbors. AWFUL. If you're thinking about signing to not antagonize them any further since you will have to live next to them, I think you'd be making a big mistake. Whatever their apparent demeanor, they are bullies who will run over you time and time again.

Don't give in, and band together with the neighbors. You should all sign a petition and take it to the appropriate authorities, imo.

If this is a deed restriction rather than a zoning setback, it is possible that it would be up to the neighbors, HOA and/or developer to enforce the no-build area. I suspect that the potential legal action is what raised alarm bells with their bank. You might benefit from a quick consultation with a lawyer.

If the developer allows this despite the deed restrictions, you and any other neighbor could have a case against the developer. I would talk to a lawyer and let the developer know that you were assured by the presence of the deed restrictions that your neighbors' houses would all be set back, or you wouldn't have built there. You have a legal grievance, imo.

Another vote not to sign. They can't sue you, but you could sue them... not that you want to, but they are taking away your view/privacy that you paid for. They are lowering your property value.

If they are still working, I would pick up the phone at 7am Monday morning and not stop calling/talking until someone from the County/City stops them.

If you're in an HOA community, the Board should have their attorney send a Cease and Desist letter. It can be hand delivered instead of mailed. Anything to stop construction.

Thank you so much for everybody's input!!! The neighbors are now saying that they can't move their house because they won't have room for their septic... Even though the lot was designed for a house with the set back and still fit the septic! I am growing more and more impatient with this whole thing... Thankfully it's not holding us up with construction.

I think we have both agreed to not sign as well many of the neighbors have stated they are not signing. Our development is not an HOA, which is why we like it because the deed restrictions are strict with out the cost of HOA. The developer has already agreed to sign off which upsets everybody.

Also we were told the township has a set back which is what they followed- basically it's from the center of the road vers the lot line which is what our lots require. We have no idea how she found the township set back because on our topo maps it only shows the development set back from the property line.

This is the kicker- she's a real estate agent and slipped the form in on a new owner at their closing because she knew the woman doing the closing. The new neighbors were blindsided and felt forced into signing it during the construction loan closing.

These people just seem to be a complete nightmare and I am sure it will only get worse!!!

Is this dead in the water if the neighbors don't sign off?

Who enforces the deed restrictions? Is it the HOA, so that is who they are planning to sue if they don't grant the variance?

Zone4newby - that is correct. Every neighbor has to sign for the variance to be approved. That is where they are now saying if everybody doesn't sign off on it they will take it to court and have a judge grant the variance because of "due cause"

Actually here is a part of the email they sent to our neighborhood email chain "If you all decide not to grant us this exception, we could do one of the following. We could go to court and ask the judge to grant the exception. Our attorney says that with due cause, which we have, the court would probably grant it." But there was not another thing as an option in their email other than this!

See what I mean by such a tactful approach!

I apologize that If what i wrote implied they would take us to court to make us sign. I don't always proof read as much as I should!

dekeoboe- currently since there is no HOA- it's the deed restrictions that enforce the rules. But up until this time there have been no issues with the neighborhood but it really is all the neighbors that would keep the rules going. Everybody is extremely laid back and followed all the rules until these folks came in- just upsetting that one house can cause all this fuss!

Also, if anything does go to court' can I get in trouble for posting this stuff on the Internet? Sorry to be worried about it but we are usually private people and never get involved in legal issues and don't know the "rules" to all of this!

What is the "due cause" to which they are referring? Do they figure that since they have started building, they have cause to continue building, even if they never should have started to begin with?

I agree with the others. Everyone is laid back - that's wonderful. As it should be. But you need to stop this from happening, otherwise these people will just keep going, without any regard for anyone else.

I would not ever sign, they really should be worried about all of you in the neighbourhood taking legal action against them and the developer.

You need not worry about what is here on the post thusfar. You haven't named any names, locations, or anything else that would identify the arrogant neighbors... Just make sure to keep it that way, and you'll be fine, legally speaking.

If they take it to court, then they will have to pay that cost - which they might not care. They should also stop construction between now and then. If you/your neighbors want to fight it, you'll need to get together and hire an attorney. I would actually do that now - you/the neighbors need to send something in writing to them and their contractor so that they take you seriously. C&D for starters. Otherwise, they'll be getting ready to go to court and you all will be behind a bit.

The "County" is not going to enforce deed restrictions. The one who sold the property with the restrictions could sue for compliance and perhaps you could do so.
And who would grant the "variance" in this case?
Unless there is an ordinance prohibiting what these people are doing, the County has no standing in the case and would not be involved in a "variance".
Interesting discussion at the link posted.

Here is a link that might be useful: Deed restrictions

This post was edited by bus_driver on Sun, Jun 30, 13 at 7:43

Time to get a lawyer involved, the longer it goes and the further their construction gets the better case they will have to have the variance granted in my opinion.

I think I'd also (while staying off their lot) document every day they build, past when they became aware that they needed a variance to continue, write down a summary of every conversation I have with them about it, print out all emails, etc...

Documentation is your friend.

So are lawyers. I'd be calling one first thing Monday (unless you know someone you can call today).

The due cause is actually hardship - they will try to convince a judge that because of the financial investment to this point (whatever point that will be when/if it actually goes to court) it would be a financial hardship to force them to move the build. They will probably also try to have that hardship filter to subs who may not be fully compensated for their work to that point - convincing a judge that they would not be able to pay them. Judges don't like to cause people financial hardship when a variance is an option - we've seen that happen in our area over and over. People are way too willing to ignore the rules and cop the attitude that it's easier to ask forgiveness after the fact than permission beforehand and it often works. There is a growing attitude now-a-days that rules are meant for everyone else and we are the exception - a sad reality of modern times.

The longer they continue working, the farther along they get on the project, the less likely you are to see the project halted permanently and it becomes very likely that your neighbors will get what they wanted all along. I would get the other community neighbors together as fast as possible and use whatever means available to stop work.

It also sounds like they are trying to set themselves up to use the septic as the reason for the variance. That they needed to put the house where it is for the septic system, which becomes a health and safety issue and would likely get approved pretty quickly, especially if no one goes to court to point out how ridiculous this argument is.

I agree, you all need to hire a lawyer!

The neighbors are now saying that they can't move their house because they won't have room for their septic... Even though the lot was designed for a house with the set back and still fit the septic!

That is only partially true. A house with a septic may fit, but not their house. However, since this is a neighborhood of custom homes, a house should have been designed to fit on the lot.

The developer has already agreed to sign off which upsets everybody.

If the developer is the one who is in charge of enforcing the deed restrictions and granting variances, then you need to meet with the developer before he grants the variance. You might want to speak with a lawyer before meeting with the developer, but if the developer is within his rights to grant the variance, there might not be anything you can do about it.

Also we were told the township has a set back which is what they followed- basically it's from the center of the road vers the lot line which is what our lots require. We have no idea how she found the township set back because on our topo maps it only shows the development set back from the property line.

This is the kicker- she's a real estate agent and slipped the form in on a new owner at their closing because she knew the woman doing the closing. The new neighbors were blindsided and felt forced into signing it during the construction loan closing.

Town setbacks are easy to find, you just ask at the town offices. I imagine they did that so they would not need a variance from the town.

Can you explain what you meant by the second paragraph? I'm lost, who is the realtor and what form did she slip in?

See a lawyer who specializes in property law. See one as soon as you can possibly get an appointment tomorrow morning. Spend today getting your other neighbors on board to assist you. Yes, an attorney will cost you something - but if you can get a half-dozen or more neighbors to help split the cost, it won't be terribly expensive.

Here is my thinking:

Because your neighbor has been told that he has to get EVERYBODY to sign off in order to get the variance he wants, I am guessing that the language that originally created the deed restrictions says something to the effect that they are for the mutual benefit of all property owners within the development. If so, the deed restrictions are a covenant that runs with the land. Everyone buying property bears the BURDEN of the deed restrictions on their property but also ENJOYS the benefits of having the same deed restrictions apply to every other property. Each buyer basically agrees to be bound by the restrictions (thus giving up certain rights that he would otherwise have with his land) in order to gain the benefits of everybody else abiding by the same restrictions.

Under such conditions the developer, by himself, cannot waive the deed restrictions. Since your developer has said he will sign, you can bet that if the developer had the legal right (all by himself) to waive the deed restriction on the land, the developer would already have done so. The developer didn't... so that very very likely means that he couldn't.

A lawyer will need to check to see how your deed restrictions were created. If I'm right though, you or any one of your other neighbors or all of you together have standing (i.e., the legal right) to go to court and get a Temporary Restraining Order (TRO) to make the neighbor stop all work IMMEDIATELY. You would not even have to have him served with process first - so the first thing he would know about the matter would be when the TRO was delivered to him. A TRO is similar to a cease and desist letter but much stronger because it has the force of law behind it.

TRO's generally have a limited life span. They're only good until a full hearing can be held on the matter. So after the TRO is issued, then there would be additional court hearings to determine if a temporary injunction or a permanent injunction should be ordered. At those hearings your neighbor would be required to make his case that he should be allowed to continue. But I don't know of too many courts that would allow the neighbor to continue to build without first getting a variance from the county or zoning commission or whoever grants such things in your jurisdiction.

If your neighbor continues to build in defiance of a TRO or an injunction, he can actually be taken to jail.

Given that your new neighbor appears to be a bully, it would probably be best if a goodly number of neighbors joined in together in the request for the TRO. Otherwise the neighbor might try to bully the one person (possibly you) who takes the lead in forcing him to stop work. If a dozen neighbors go in together though and all of their names appear (in alphabetical order) on the request for the TRO, it is much much less likely that the neighbor will try to bully anyone.

A TRO would stop the neighbor from his strategy of deliberately INCREASING the supposed economic hardship he will face if forced to tear up the work he has already done. And the fact that he has already continued to work on the project in light of the fact that he KNOWS he is in violation of deed restrictions is a strong argument that the TRO should issue.

Good luck - and let us know how this all turns out.

BTW - I too am confused about who the "real estate agent" is and what her role was in this whole SNAFU. Are you saying that the new neighbors (the ones who are building) were victimized by an unscrupulous real estate agent who did not inform them of the deed restrictions on the property or convinced them that they could ignore the deed restrictions. If so, it is possible that your new neighbors aren't so much bullies as they are victims who are reacting badly to a situation where they see themselves possibly losing a huge investment because they were given bad information. It sounds as if they are continuing to make some bad choices but one would still feel a bit of pity for them.

I think you've gotten good advice with respect to whether or not to sign (I wouldn't). But, I interpreted your bit about the neighbor having a form "slipped in" to their construction loan documents as an egregious ethical violation.

I would tell the neighbor who felt forced to sign the variance request at her closing to report her - that is beyond ridiculous and I would complain to the bank, the title company, the real estate commission, pretty much anyone who might listen.

As far as deed restrictions, the way it works in Houston is that anyone can complain about a deed restriction violation, and the city of Houston will enforce them. It's usually not a situation where a private entity such as a developer is responsible for enforcement. You can (and should) complain to whomever is supposed to enforce your deed restrictions that they are continuing to build. If you don't know who should be enforcing them, check your city/county websites for information.

Yeah.... what bevangel said !!! ;-)

Seriously, don't waste time. We're all anxious to hear what happens and hope you're able to get a posse with you.

"This is the kicker- she's a real estate agent and slipped the form in on a new owner at their closing because she knew the woman doing the closing. The new neighbors were blindsided and felt forced into signing it during the construction loan closing."

I read this to mean that Mrs. bully neighbor is the realtor, and with a wink got a colleague in a closing company/law office/title company to include the waiver of the bully's violations in the closing package of an unsuspecting new purchaser in the neighborhood, and the new purchaser felt pressured to sign it. If this is the case, then my impression is these folks were planning this all along.

As all the others have said, get thee to a lawyer first thing Monday. Because the more work they do, the less likely a Court will want to tell them to undo it. And by them possibly getting neighbors to sign one at a time, I wonder if the deed restrictions don't require just a majority of the residents to waive the violations. And does the developer get votes for the lots he still owns and hasn't sold? All these questions a lawyer can help you with.

You might seriously consider going to the media. Bad publicity could be very bad business for your unscrupulous developer.

So everybody!!! I think things have turned a corner!! All of the neighbors got together and we all expressed our problems with the entire situation. We all took a vote- the zoning boated required us to either sign or do an anonymous vote and most of the neighbors voted no. The people building have finally realized that they can't win with the variance and more than likely spoke with their attorney who also told them it would be a long drawn out fight. (I spoke with an attorney on Monday who said we would have no problem fighting them and all the neighbors said they would all be willing to get the same attorney.)

But thankfully, they have decided to do the right thing and move their house!! Even though the things they did were shady they are doing the right thing. I realize I may not ever be great friends/ neighbors like with the rest of the neighbors but at least I will no longer have horrible feelings when I think of them or see them!

I think it was good that we all stood our ground and it seems like things are going to look up from here and I hope they follow the rest of the deed restrictions and we will all be golden!!!!

Thank you so much for everybody who gave advice and made me feel Better about our situation and our standing with it! :-)

Stay alert! Folks like this do not give up easily.

"Take a moment now and then and give a thought to your fellow man. He might be plotting something".

Yeah, we had a fellow in our old neighborhood who was developing property. The neighbors didn't like what he was doing and went to zoning so he couldn't build as many houses as he wanted. He refused to sell any of his new homes to anyone unless they signed an agreement saying they would not fight anything he wanted to do in the future.

Real sleaze.

That's great news, but like the others I would watch them like a hawk.

Now is the time to document the consensus.