The proposed kitchen expansion at 300 Hopkins that the board is seeking to halt has people asking some interesting questions: What exactly are the covenants, and what do they allow and what do they prohibit? Why have some covenants expired and others have not? Why haven't I seen the covenants and where can I find them?
I'm not a lawyer and I have no expertise in property law, so please understand that this post is just a layman's view of the situation; it is not a legal opinion nor is it legal advice.
Covenants are legal documents that run with the land and they are filed in the county courthouse. They are similar to your deed and they say what may or may not be built or altered on your property. Many neighborhoods, including Wiltondale, Homeland and Gaywood, post their covenants online. Stoneleigh is no longer governed by covenants.
Covenants should not be confused with the “guidelines” that are published in the Rodgers Forge phone directories that discuss height of fences, size of decks, color of awnings, not keeping a bike on your porch, etc. A covenant is basically a legal way of saying, "We, the developers, are setting up a few basic rules for these homes and later if individual owners want to alter the exterior of their homes, they must get permission." Covenants can only be changed through specific legal channels and with homeowners' signed approval.
The guidelines, on the other hand, are what the board has created in order to tell homeowners what types of changes it will and won't approve. The guidelines can change at any time as long as a majority of board members agree to the change. (More on the guidelines in a moment.)
Originally, the Keelty Company had the right to enforce the covenants, but in 1960 it signed over that right to the Rodgers Forge board.
There is no single set of “Rodgers Forge covenants.” They vary depending on when the homes were built. Some covenants cover several blocks and some cover only one side of one block. Some set up restrictions on the property and the house, and some set up restrictions only on the house.
While they can vary from street to street, over the years the board has determined that there are basically three general types of covenants in Rodgers Forge:
The first type covers the blocks of Regester, Murdock, Dunkirk and Hopkins from Pinehurst to York Road, which is the original or “old” section of the neighborhood. These covenants state that they run through 1960 at which time they will “cease.” Click here to see an example of these types of covenants.
The second type of covenant is still in effect and says that “no building shall be erected placed or altered on any building plot in this subdivision until the external design and location thereof have been approved in writing” by the board. There is no mention of changes to the land (fences, landscaping, lawn ornaments, etc.). Click here to see an example.
The third type of covenant is much more detailed and talks about fences and awnings, etc. Click here to see an example.
WHICH COVENANTS APPLY TO YOU
The board has looked into the issue of covenants at least twice in its history. In 2005, the board created an "architecture task force" to, among other things, determine what covenants covered which blocks; see which covenants were enforceable; get community input on the guidelines; and set up "specific, clear and understandable architectural standards." The task force didn't get very far and fizzled out before any of those goals were completed. But it did hire a title searcher to look up some covenants. In 2007, the leader of that task force wrote a letter to an incoming board member to explain to him what had been found in terms of the covenants. Click here to read the letter.
In the report you'll see references to documents such as "2043/449." What that means is that the covenant is recorded in the courthouse in book #2043 starting on page 449.
According to the report, here is the block-by-block breakdown of the covenants:
If you live here:
Dunkirk 200-427 both sides
Hopkins 200-427 both sides
Murdock 200-427 both sides
Pinehurst east side
Regester 200-427 both sides
then your house is probably covered by covenants similar to the 965 set
If you live here:
Dumbarton 151-427 odd side
Dunkirk 1-128 both sides
Glen Argyle 109-135 both sides
Hopkins 100-158 both sides
Murdock 1-150 both sides
Overbrook 100-428 both sides
Pinehurst west side
Regester 1-169 both sides
then your house is probably covered by covenants similar to the 1870 set
If you live here:
Brandon 100-252 both sides
Dumbarton 128-206 even side
Lanark 7200-7237 both sides
Stanmore Court 7400-7424 both sides
Stanmore Road 101-344 both sides
Stevenson 101-242 both sides
then your house is probably covered by covenants similar to the 2043 set (note: page 459 is where the more relevant language begins)
If you live here:
Chumleigh 408-426 both sides
Dumbarton 330-340 even side
Dumbarton 402-426 even side
Heathfield 7008-7127 both sides
Heathfield 7128-7140 even side
Heathfield 7129-7133 odd side
Old Trail 400-440 both sides
Rodgers Court 417-425 odd side
Rodgers Court 7100-7122 both sides
Stevenson 401-419 odd side
York 7000-7116 even side
then your house is probably covered by covenants similar to the 2678 set
If you live here:
Old Trail 300-377 both sides
Stevenson 311-323 odd side
then your house is probably covered by covenants similar to the 2928 set
Again, these are not necessarily the covenants for your particular house, but they are, according to the 1967 report, very similar in language to the ones that run with your property.
The Rodgers Forge board, on advice from its attorney, J. Carroll Holzer, maintains that it still has the authority to enforce the covenants that expired in 1960, although it has offered no specifics on why it takes that position. The board declined to comment on questions about covenants because it is waiting to hear the results of the 300 Hopkins variance. (While covenants are not technically at issue in the variance question, the board told the homeowner's attorney that if the variance is granted and she moves ahead with construction, it will file suit to stop her based on covenant restrictions.) The board indicated it might discuss at its next meeting, which is August 31, the possibility of at some point commenting on covenants.
The board has filed several covenant-related lawsuits in the past. A few years ago it sued homeowners on Lanark Road, which is in the newer section where the covenants have not expired, after the owners put a roof over their deck without first seeking board approval. The homeowners decided to tear down the roof and move to a new neighborhood rather than fight in court, so no ruling was ever made.
When the board went to court to fight a kitchen expansion at 201 Murdock (also the "old" section), the covenants were brought up but Holzer did not provide the judge with a copy of the covenants, according to the ruling, which was in favor of the homeowners.
CHANGING THE COVENANTS
While the covenants are often considered to be written in stone, they can be changed. Near the end of each covenant document, as evidenced in the above examples, there is language that explains how this can be done (except for those that expired in 1960). Generally, it requires a certain percentage of homeowners in the given area to sign off on the change.
That’s what one Rodgers Forge resident did when he wanted to put skylights in his house and the board said no. (He now has the skylights and the board did not take legal action.) His home is in the non-expired section. Click here to read the abrogation that allowed the skylights.
(The abrogation issue raises an interesting question in my non-law-schooled mind. There is such a thing as a "rule against perpetuities," which means property contracts can't go on indefinitely; they must have an exit clause. This could be an expiration date, or automatic renewal unless a specified action is taken to stop the renewal, or a process by which the contract can be changed or nullified. But if the board takes the position that the expired covenants have not actually expired, where is the exit clause? There is no mechanism for altering that set of covenants, so without an expiration date they would remain unchanged and in force forever -- in other words, in perpetuity.)
Now on to the guidelines.
The Rodgers Forge board has the authority to enforce the covenants. To do so, the board has come up with a set of guidelines. These guidelines, however, should not be confused with the covenants.
The covenants are very limited in their directives. Take the "2043" covenants -- they basically say:
- you can't carry out a noxious or offensive trade on your property or do something that could become a nuisance to the neighborhood
- you can't put a shack or barn on your property and live in it
- garages must be brick, not metallic, and you can't park on your property except in a garage
- sun rooms are not allowed where plans call for open space but bay windows are OK
- you can't change the exterior of your home without first getting approval; there is no directive, except for the above points, about what types of changes should or should not be approved
Over the past few years, the guidelines have gotten more expansive. For example, the 1995-1996 guidelines (pictured below) took up about half a page of the directory: Today, the guidelines take up five full pages in the directory. Click here to view guidelines dating back to 1992. The guidelines are created by the board’s architectural committee and approved by the board. The guidelines can be changed at any time should a majority of board members vote to do so.
Lastly, it is now possible to look up most covenants online for free, although it can be a somewhat complicated process. I will have an explanatory post on how to look up individual covenants within the next few days.
What do you think? Post or read comments here: Comments