On Sat, 17 Mar 2007 10:59:58 CST, Ralph E Lindberg
wrote:

As I understand Washington (state) law, the same is true here, plus if
the regulation hasn't been enforced in years, or has been "selectively"
enforced.

Except for the race restriction found in some old CCNRs

That was thrown out by the Supreme Court of the United States in the
landmark case _Shelley v Kraemer_ that everyone studies in
Constitutional Law classes. The SCOTUS declared that a state court
enforcing that restriction made it a state action and such
discrimination was against Federal law, making that contract term
unenforceable.

We tried using that same approach to have PRB-1 apply via the
back-door in _Hotz v Rich_. a mid-1990s CC&R case in California, but
the California Court of Appeal shot us down, claiming that problems
with amateur radio antennas did not reach the same level of public
policy that racial discrimination did.
--
Phil Kane
Beaverton, OR

On Mar 10, 11:12 am, Cecil Moore wrote:
KC4UAI wrote:
This is important to me because I live in a deed restricted community
with a very picky HOA.

Did you previously agree to the restrictions?
If so, it is likely a legally enforceable contract
between you and the other party.
--
73, Cecil http://www.w5dxp.com

Well.. If truth be told, I knew in advance about the restrictions.
However, this was *only* because I asked. CCNR's are not normally
disclosed in total prior to writing a contract on a house. Your only
indication that there *might* be CCNR's is that you are told that
there is an HOA who collects dues and how much the dues are. In my
experience, if you see HOA dues, you should assume the CCNR's restrict
antenna installations. And walking away from your contract will cost
you the earnest money if the reason is that you found the CCNR's too
restrictive.

My complaint here is that the CCNR's are all boilerplate and just
about 100% of the builders in the area I live have their standard
CCNR's that they file before they start building. If you want to buy
a house built in the last 5 years or so, almost 100% of them will have
CCNR's that restrict antenna installations that are visible from any
other lot or the street. Almost 100% of houses are built by builders
who's standard operating procedure is to file boiler plate CCNR's
before they even subdivide the land and start building roads.

Further, it's next to impossible to change these agreements. Legally,
you have to get 100% of the lot owners on the original land that the
CCNR got enacted on to agree to modify the agreement. (Can you say
herding cats..) You cannot even go to the HOA and get an "agreement"
here, because if they choose to not enforce the CCNR the guy next door
has the right to take you to court himself. In fact *anybody* in the
neighborhood can.

CCNRs have their place, and I understand that. How else would you get
folks to pay for the community pool. But, I believe that there is a
vested interest in the pre-emption of these agreements in a few more
cases than the FCC has chosen. Amateur Radio being among these few
cases.

-= bob =-

KC4UAI wrote:
Further, it's next to impossible to change these agreements. Legally,
you have to get 100% of the lot owners on the original land that the
CCNR got enacted on to agree to modify the agreement.

Legally, it is not a contract unless you agree to it.
What would happen if you simply crossed out the antenna
restrictions clause before signing the contract?
--
73, Cecil, w5dxp.com

On Mar 16, 2:39�pm, Cecil Moore wrote:
KC4UAI wrote:
Further, it's next to impossible to change these agreements. *Legally,
you have to get 100% of the lot owners on the original land that the
CCNR got enacted on to agree to modify the agreement.

Legally, it is not a contract unless you agree to it.

Not only do *you* have to agree to it, but everyone
else involved has to agree to it as well.

What would happen if you simply crossed out the antenna
restrictions clause before signing the contract?

That depends:

IANAL, but this is what I've learned.

If the seller is the person who put the restriction on the
contract, and has the authority to remove it, then the
two of you (and all other parties involved) could agree to
remove the restriction.

But in many cases that simply won't work. Here's why:

Most deed restrictions and covenants are specifically
written to be self-perpetuating. There is usually a clause
which says that the restrictions cannot be removed by
future owners - including the restriction that says
restrictions cannot be removed.

In those cases, the seller does not have the right to
remove the restrictions. S/he agreed to give up that right
and to continue all the restrictions as a condition of the
sale when *s/he* bought the property.

So you could cross it out and sign it, and so could the seller,
but if it were challenged by anyone, it would not stand up. In
fact, you might be in trouble for attempting to alter an
official document.

Deed restrictions are written that way for a reason: they'd
be too easy to change without it.

For example, a friend of mine lives on a 1.2 acre lot. The zoning in
the area requires a lot size of at least 0.5 acre.
His house and garage are at one end of the property, and
he could easily slice off a half-acre at the back without
violating any setback requirements. But a deed restriction
dating from the building of the house prohibits the further
subdivision of the land. So it's 1.2 acres essentially forever.

If we could get rid of deed restrictions and covenants just
by crossing them out, why would we need PRB-1?

73 de Jim, N2EY

On Fri, 16 Mar 2007 13:39:15 CST, Cecil Moore
wrote:

Legally, it is not a contract unless you agree to it.
What would happen if you simply crossed out the antenna
restrictions clause before signing the contract?

Both the contract and state law says that you agree to all recorded
CC&Rs on file. Usually one of the CC&Rs is that you will comply with
HOA regulations. An individual buyer cannot modify such restrictions
unilaterally. There may - or may not - be a provision for modifying
them spelled out in the CC&Rs or HOA Regulations themselves, but that
usually requires a unanimous or super-majority vote of all those to
whom the restriction applies (lots of luck). The only other way is
that some states permit a homeowner to sue for a declaration that the
restriction is unreasonable and therefore unenforceable, but the
burden of proving unreasonableness is very high and is on the
homeowner seeking relief.
--

73 de K2ASP - Phil Kane
ARRL Volunteer Counsel

email: k2asp [at] arrl [dot] net

On Fri, 16 Mar 2007 13:05:57 CST, "KC4UAI" wrote:

Well.. If truth be told, I knew in advance about the restrictions.
However, this was *only* because I asked. CCNR's are not normally
disclosed in total prior to writing a contract on a house. Your only
indication that there *might* be CCNR's is that you are told that
there is an HOA who collects dues and how much the dues are. In my
experience, if you see HOA dues, you should assume the CCNR's restrict
antenna installations. And walking away from your contract will cost
you the earnest money if the reason is that you found the CCNR's too
restrictive.

Depends on where you are. In California and some other states, the
seller's agent must produce the documentation of CC&Rs and HOA
Regulations before the contract goes into effect, and I insist - for
myself and my clients - that a clause be inserted into the contract
that the buyer has a set time such as five days to back out with no
penalty if there are restrictions on antennas or if the seller's agent
fails to produce the above documentation to prove that there are no
such restrictions.

When we were in the process if buying our house here in 1999, we
didn't wait for the seller's agent -- we had our agent telephone her
office to get the CC&Rs on every house that we were interested in
(they are on file with the county recorder and can be obtained by
FAX). There was one brand new townhouse that we really liked that
really screamed "CC&Rs" but the search did not reveal any. I didn't
trust the search, and we passed it by. We settled for our third
choice, a 30-year old house that had CC&Rs but no HOA, and nothing in
the CC&Rs would serve as a restriction to what I wanted to erect.
--

73 de K2ASP - Phil Kane

From a Clearing in the Silicon Forest
Beaverton (Washington County) Oregon

e-mail: k2asp [at] arrl [dot] net

On Mar 10, 11:12 am, Cecil Moore wrote:
KC4UAI wrote:
This is important to me because I live in a deed restricted community
with a very picky HOA.

Did you previously agree to the restrictions?
If so, it is likely a legally enforceable contract
between you and the other party.

In all fairness, Yes and no. Did I know about the restrictions? Yes,
however, unless I had asked about antennas, the only thing I would
have been told was that there was a HOA and they collected dues to
support the community pool. But, I really had no other choice at the
time and don't really have one now. There simply are no similar
houses in the area that would not have CCNRs where I could relocate
to.

The problem here is that the CCNR's are not a contract between me and
the HOA per-say, but an agreement with every other lot owner in the
subdivision. This means I could go the the HOA and get an agreement
to alter the CCNRs but my neighbor could still choose to enforce the
CCNRs himself even if the HOA declined. The only way to change the
CCNR's is to get *every* party of the contract (all 250+ lot owners)
to agree. My only real option is a federal rule similar to PRB-1 and
what it does for broadcast and data services. (or wining the lottery
or finding some non-existent house w/o CCNR's that the XYL and I can
live with..)

-= Bob =-

On Mar 17, 12:12�am, "KC4UAI" wrote:
On Mar 10, 11:12 am, Cecil Moore wrote:

KC4UAI wrote:
This is important to me because I live in a deed restricted community
with a very picky HOA.

Did you previously agree to the restrictions?
If so, it is likely a legally enforceable contract
between you and the other party.

In all fairness, Yes and no. *Did I know about the restrictions? *Yes,
however, unless I had asked about antennas, the only thing I would
have been told was that there was a HOA and they collected dues to
support the community pool. *But, I really had no other choice at the
time and don't really have one now. *There simply are no similar
houses in the area that would not have CCNRs where I could relocate
to.

Which is the textbook definition of a "contract of adhesion",
IMHO.

The problem here is that the CCNR's are not a contract between me and
the HOA per-say, but an agreement with every other lot owner in the
subdivision. *This means I could go the the HOA and get an agreement
to alter the CCNRs but my neighbor could still choose to enforce the
CCNRs himself even if the HOA declined. *The only way to change the
CCNR's is to get *every* party of the contract (all 250+ lot owners)
to agree. *

Another way of making them practically unchangeable.

My only real option is a federal rule similar to PRB-1 and
what it does for broadcast and data services. (or wining the lottery
or finding some non-existent house w/o CCNR's that the XYL and I can
live with..)

This is where real estate differs from other purchases IMHO.
Unlike almost everything else, RE is in limited supply and not
portable. They're not making much more of it, either. Plus you cannot
buy what isn't for sale.

Most of all, RE is often a joint purchase that affects many
people, rather than just one. Getting family agreement is
the reality of most modern families.

KC4UAI does have some possible options besides those
listed:

1) Watch the RE ads and websites looking for a unrestricted
house - and be ready to jump on it if on does appear.

2) Look for brand-new developments, and offer to buy only
if the developer (who almost always is the one who adds
the restrictions) does not include the anti-antenna CC&Rs
on the house. It probably will not have an effect right
away, but after a while the developers might get the
message that they are losing sales because of the restrictions.

3) Save up for the dream house out beyond the restrictions.

4) Figure out ways to get a ruling like the OTARD one for
amateur antennas.

73 de Jim, N2EY

On Mar 17, 9:43 am, wrote:
2) Look for brand-new developments, and offer to buy only
if the developer (who almost always is the one who adds
the restrictions) does not include the anti-antenna CC&Rs
on the house. It probably will not have an effect right
away, but after a while the developers might get the
message that they are losing sales because of the restrictions.


It's an idea, but there are pitfalls here. Having a developer wave or
change the CC&R's is an option, but only if he actually can. Assuming
that the developer actually owns the land (all of it) and can make
changes to the restrictions for you, how many will? Remember there
are only about 600K of us nation wide, not a large percentage of the
market there. I'll bet that even if we all did this, any single
developer would only see this once in a blue moon and making changes
in the boiler plate CC&R's would not be done.

I'd also be afraid that the developer would try to give you a "waver
letter" saying that the specific restriction in question didn't apply
to you, but that's about as useful as the paper it's printed on once
the development passes from developer control to HOA control. They
wouldn't be bound by this "agreement" unless it's legally recorded on
your title (and very likely on everybody else's titles as well.)

About the only real option here (Apart from joining the HOA Board and
bribing the rest of the voting members to get a temporary exception
just for me) is to save up my pennies and move to the sticks once I
retire in 20+ years. In the mean time I'm stuck with what I can hide
in the attic of my single story home which is full of HVAC equipment,
electrical, alarm, and phone wiring and Christmas decorations.

-= bob =-

On Mar 19, 2:00�pm, "KC4UAI" wrote:
On Mar 17, 9:43 am, wrote:

2) Look for brand-new developments, and offer to buy only
if the developer (who almost always is the one who adds
the restrictions) does not include the anti-antenna CC&Rs
on the house. *It probably will not have an effect right
away, but after a while the developers might get the
message that they are losing sales because of the restrictions.

It's an idea, but there are pitfalls here. *Having a developer wave or
change the CC&R's is an option, but only if he actually can. Assuming
that the developer actually owns the land (all of it) and can make
changes to the restrictions for you, how many will? *Remember there
are only about 600K of us nation wide, not a large percentage of the
market there. I'll bet that even if we all did this, any single
developer would only see this once in a blue moon and making changes
in the boiler plate CC&R's would not be done.

Still worth trying. If a developer starts losing sales because
of CC&Rs, they may be more flexible.

I don't know what the RE market is like in your area, but
here in EPA it is not as much a seller's market as it was
a few years ago. Sellers are making deals today that
they'd never have made in 2000.

I'd also be afraid that the developer would try to give you a "waver
letter" saying that the specific restriction in question didn't apply
to you, but that's about as useful as the paper it's printed on once
the development passes from developer control to HOA control. *They
wouldn't be bound by this "agreement" unless it's legally recorded on
your title (and very likely on everybody else's titles as well.)

That's why you need a competent real estate attorney, to
see that the restrictions are completely removed from the
deed in accordance with all applicable laws.

Some things are *not* DIY.

About the only real option here (Apart from joining the HOA Board and
bribing the rest of the voting members to get a temporary exception
just for me) is to save up my pennies and move to the sticks once I
retire in 20+ years. *In the mean time I'm stuck with what I can hide
in the attic of my single story home which is full of HVAC equipment,
electrical, alarm, and phone wiring and Christmas decorations.

I disagree! I think it's at least worth looking.

IMHO, one of the biggest problems with buying real estate
is that it's not something most people do often, nor when
they choose to do it. The trick to getting the best RE deals
is to simply watch the market in your target area, and be
ready to jump when the right house shows up.

But if you accept defeat before even trying.....

73 de Jim, N2EY