Replies

1. 
   Guest_ | Feb 03, 2000 06:41pm | #1

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   Around here we call that a "story-and-a-half". That's just local lingo though, so I'm not sure what bearing that has on your situation.

   As far as code issues, once again, in my area, (NC - CABO code) the bottom line is: Do you have a set of stairs that accesses the 2nd floor/attic area? If there is stairs, it's considered potential living space, and generally, that means, 2x10 floor/ceiling joists, finished or not. That's the only related item I can think of.

   As far as restrictive covenants, that's entirely up to who ever enforces 'em.

   One thing that was unclear from your post... Is the house already built or not? Just curious. If not, maybe the dormer could go on the back, just to keep everybody happy.

1. 
   Guest_ | Feb 03, 2000 07:37pm | #2

   *Your question is entirely one of legal interpretation, and I would not even consider proceeding with construction without first getting an authoritative written opinion as to the structure's acceptability. Your subdivision's covenant has to be interpreted in light of local circumstances, what other homes have done, etc. Here, a house with a doghouse or two is a "one-story with finished attic"; a shed or more substantial dormer is a "story and a half." This is more real estate lingo than anything else.But I take it you already have the house? Has it been there a while? Has anyone complained? If not, I would take the exact opposite approach and keep my mouth shut, privately getting legal advice from someone competent to practice law where you live (not me). If no one complains for a certain number of years (the statute of limitations) the covenant is probably unenforceable, and perhaps already is. In other words, determine your rights, but don't advertise a potential problem. I doubt it's the inspector's job to enforce the covenant, so approval of a permit to finish the attic would mean nothing legally. On the other hand, it sounds like the covenant only applies to exterior dimensions. You see how this can get messy. Talk to a lawyer before you blow any money on this thing -- you do sound worried.Your covenant was badly written, I have to say -- what does "one story in height" mean?!? Could I have twenty foot walls, maybe with a loft inside? An invitation for litigation. The zoning rule here is that the midpoint of the roof cannot be more than 35 feet above grade. I suppose you could have twelve stories below that. :)Please let us know what you find out.

2. 
   Dan_Schultz | Feb 03, 2000 07:58pm | #3

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   I also think it depends on whether your house is existing or in the planning phase. If it has already been built it no doubt met the restrictive covenant at the time. Once it is built I think finishing the part above the ceiling joists is now up to you. You're not changing the exterior appearance of the house.

   I also have a restrictive covenant in my subdivision which forbids me from putting up any free-standing structure except the house on my lot. I am not supposed to be able to put up even a garden shed or a gazebo. Why do people put up with this nonsense? There are so many people violating the restrictive covenant, however, that I am going to put up a garden shed this spring. Restrictive convenant be damned!!

   Just for information, I did inquire of my subdivision's developer about how to change the covenant, legally. They said I would need to draft a proposed change to the covenant, then I would need to get signatures from all present land owners (unanimous approval)in my "phase" of the subdivision. Lastly, I would need to take it to the county Register of Deeds and have it registered. Good Luck!!!

3. 
   Guest_ | Feb 03, 2000 08:29pm | #4

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   Dan, there is a principle that "everyone does it" actually can be an excuse. Just be nice to your neighbors, like I've been nice to the ones with a close-up view of our dumpster for the last few months. A legal restriction means nothing if no one steps forward to enforce it. But every neighborhood seems to have at least one nut in it.

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   Guest_ | Feb 03, 2000 10:36pm | #5

   *Don, I'm not an attorney, but I do work for one who's specialty is contract law, especially as it pertains to contractors and mechanics liens and such.My off the cuff idea is this - this "room" is already in existence, right? Not something you intend to build, only finish? It doesn't seem to me that it would be breaking the covenant. However, and I do stress the however, building laws are very different state to state, as are contract laws. If I were you, I would have a real estate attorney take a look at the covenant and give you his opinion. It would be worth the bucks you put out to hire him to say yay or nay, than finishing the room, the house gets re-appraised several years down the line, and someone deciding that finishing the room qualified it as a second story and suing you (we live in such a stupid, litigious society!!!). Better safe than sorry, IMHO.That covenant is badly written, though. Sounds like a lawyer wrote it! (LOL) Maybe you can take it on yourself after this is all over to have it re-written so that normal people can understand it more clearly and this problem doesn't develop again.

1. 
   Guest_ | Feb 03, 2000 11:41pm | #6

   *Ahem. The clause sounds like it was written by a builder, NOT a lawyer. :) See, it's this kind of thing that's why you shouldn't try to draft your own will, covenants...Andrew Douglass, Esq.

1. 
   Guest_ | Feb 04, 2000 12:19am | #7

   *Perhaps someone not suffering from CRS (Can't Remember S***) syndrome could verify this: The Mansard roof was created in response to a tax levied on additional storys, effectively and legally circumventing the tax law by shingling the entire additional story. Maybe this ancient precedent could be streched to apply: a roof is a roof no matter how many square feet of living space is behind it and not an additional story. Lawyers have been able to convince judges/juries of a lot more far out ideas than this.Comment? Ralph

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   Guest_ | Feb 04, 2000 12:38am | #8

   *Hey, tax evasion is as old as taxes. An early English tax was based on the number of windows you had -- windows were very expensive and indicated wealth, plus it was a nice objective tax to levy. It soon resulted in new homes with fewer and larger windows.These clever tactics can always be defeated by rewriting the tax law. But the poster's covenant will never become more restrictive.

2. 
   Guest_ | Feb 04, 2000 09:33pm | #9

   *Matt's Post is right on.This sounds to me like a one story house unless there is a floor, a set of stairs etc. Otherwise it is a two story home.Jeez, you folks and CC&R's! Didn't you know the regulations before you bought the place and moved in? Do you think you can just blatantly violate the CC&R's? Or do you think you can be "clever" and hide a bootleg 2nd story and get away with it? If you don't like the regulations, don't buy the house. If you had a stupid attack, then sell and move out to the country. Get with the program.I personally hate CC&R's but have little sympathy for the folks that live in Tract Homes and complain.

3. 
   Guest_ | Feb 04, 2000 09:48pm | #10

   *Not to take on Scathing Scooter (gotcha going on this one!), but be careful to weigh every word in the quoted clause: ""No building shall be erected on any said lots more than one story in height above the ground level ..."I think the clause is solely concerned with height, not interior improvements. It would be helpful to see the clause's context, and to know if there are other houses originally built in this style -- i.e., has the dormer been there a long time? I would hesitate to -expand- the dormer but not worry much otherwise. I would nonetheless get competent local advice and research. These clause are most often the sorts of things nasty people invoke in neighborhood spats, like the classic "spite fence." But I don't find their occasional use to head off the cheapo builders. The house may have even been worth more because its neighbors carried the restrictive clause -- some people just like homogeneity.

4. 
   Guest_ | Feb 05, 2000 02:10am | #11

   *Is your neighborhood also "view" property. In most cases I have seen and delt with, finishing an attic or adding a dormer that did not go above an exsisting roofline was O.K. but for new construction the rules can be a lot tougher as to height or blocking view etc. One man in a "view" neighbor hood did the ultimate sin ( in my opinion) for Oregon and built a house with a flat roof, but in doing so was able to add a second story and still be under the height and blocking restrictions on the coast. Check yur small print and check with officials before you submit plans or yu may have to resubmit an "approved" version and pay more. That is a whole lot cheeper then turning a staircase into a bookshelf, or changing floorplans mid stream.

5. 
   Guest_ | Feb 06, 2000 02:58am | #13

   *Don:While looking in my code book for something else, I stumbled across the definitions for a "story" an "attic story" etc.I would have type 'em in here but It doesn't even look like your are reading the thread as you have not answered the few questions above. Meet us half way and I'll give you the definitions!

4. 
   Don_Russell | Feb 06, 2000 02:58am | #12

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   The restrictive covenant says in part "No building shall be erected on any said lots more than one story in height above the ground level ..." I have a single story house with an 8/12 pitch roof. The only vertical walls above the main floor top plate are those the support the dormer on the front. The single dormer on the front will allow for a portion of the attic space to be used as a room. Do you believe this to be a two story structure? If so would limiting access to the area as required by code and not finishing the room as living space meet the restrictive covenant? Would it require the removal of the dormer which does not exceed the principle roof line? I would appreciate any replys be sent via e-mail as well as posted to expedite gathering information. Thanks for any input.