The idea for an FAQ regarding the restricted use easement came entirely from Tom Nguyen.
The extremely important third party legal advice was gathered by Danielle Sivalingam.
Putting this information up here on this page was done by Dan Coates.
Homeowner questions submitted after the FAQ was published are at the end.
This FAQ is a team effort and had input from many different parties. It is absolutely not something I've created on my own (Dan). The parties involved include homeowners that never built in the RUE, homeowners that built in the RUE without approval, a homeowner that had their plans approved to build in the RUE, homeowners that have not built anything yet waiting for the conclusion of this vote, as well as homeowners that do not have a RUE whatsoever.
Resolving our community's predicament will require everyone having the same information. There is no resolution that will satisfy everyone. This website and domain are privately owned and not associated with our association. Information contained here is accurate to the best of my knowledge. Please let me know if a correction is needed. d@ncoates.com
What is the restricted use easement?
Homes with a black metal "view fence" have restrictions on what can be done within 8 feet of the fence. Generally these homes all have a slope of some kind leading to the metal fence. According to our CC&Rs, only vegetative landscaping and irrigation can be placed in the easement area. This means no walls, steps, or anything similar. The purpose of the Restricted Use Easement is so the HOA can preserve the structural integrity of the engineered slopes as well as to maintain views.
How do changes in our CC&Rs affect me and my easement?
If the rules regarding the easement are changed, we will be allowed to build retaining walls and steps in the easement area. Everyone will be allowed to -- not just those who already did. This generally means much more usable backyard space for anyone building a retaining wall close to the metal view fence. Folks that have not built within the easement area will then be allowed to do so. Folks that have already built in the easement will not be required to remove what they've built. The ACC committee will still determine approval based on specific guidelines. Changing these rules is not getting rid of the easement alltogether but rather allowing retaining walls and steps to be built within.
How many homes in our community have a Restricted Use Easement?
There are approximately 300 lots with a RUE.
I don't have an easement, why should I care?
There are multiple parties that have legitimate legal claims whichever way this goes. If the HOA is the target of a lawsuit, those selling their homes will be forced to disclose that information to the potential buyer. Also, lawsuits are public record and it doesn't look good even after being fully resolved. The ultimate goal of our HOA is to responsibly maintain and increase property values, not be the reason for a decrease.
They all built without approval from the HOA. Their fault right?
No. This is where the legal situation gets precarious. Not all owners built in the RUE area without approval.
Did the HOA approve plans that would violate our CC&Rs by allowing building in the RUE?
Yes. We've heard these claims for a while, but I deal in only real proof. Last night (Feb 6) there was a small meeting where a resident presented us their approval that violates our CC&Rs. If you've ever worked with CAD software like solidworks, this plan they submitted was properly annotated according to best practice, with all applicable dimensions and measurements. The plan was extraordinarily detailed and everything clearly visible. The plan was submitted in late 2023 and approved the next month. The plan requested a retaining wall 3 feet from the metal view fence among a couple other things within the RUE. There were a couple issues annotated on the approval but absolutely no reference to the RUE.
I have seen only one instance of this approval with my own eyes, but because of how clearly everything was annotated yet still approved, I have no doubt this is likely a more common issue than we think. The approval I saw was from 2023 so there is potentially a whole year's worth of people in this situation.
At the time of this approval, the board consisted of two Lennar representatives and our elected homeowner. Both Lennar board members were on the ACC comittee and approved this.
What does a third party lawyer, experienced in real estate and HOA disputes, suggest our community do in this situation?
He suggests passing the amendment to the CC&Rs and moving on. He stated lawyers are unlikely to take any side's case on this matter on contingency because of the complexity and specifics of the situation. He suggested the cost of removing everything in the RUE is likely cheaper than lawyer fees. It is possible for special assessments to be levied on all of us (the HOA members) to cover the costs of this situation. See: below
This seems like a simple matter, what could possibly complicate matters?
#1 is the fact that approvals were given to build in the RUE. No matter what, this complicates things. Folks who built on the easement will point to that as proof that their retaining walls should not be removed and were indeed legitimate.
#2 is the fact that Lennar employees have repeatedly told buyers they can and should build up to the metal view fence. Lennar did the opposite of New Home Company in this regard. NHC told every buyer about the easement. If anyone has this in writing from Lennar, that would be helpful.
Note: Our association governing documents state the easement is initially landscaped by the builder. Anthem and The New Home Company had fully landscaped and irrigated the easement area prior to closing. Lennar left the easement area barren and prone to erosion when homeowners closed.
Could fixing the HOA's mistake cost us money?
Is the HOA financially responsible for removal of construction in the RUE area that it approved? I don't know. But residents without these issues will absolutely hate -- and resist -- paying to do this.
It isn't fair that I followed the rules and others are getting away with breaking them.
Nope, it isn't fair at all. That's the situation we're in though. It sucks. There is no good way out of this that doesn't leave many people upset. We need to consider future legal issues and costs that the HOA, and by extension us, will be risking.
Special concerns regarding the vote
Because there are approved plans for construction in the RUE, the HOA may have opened itself up to legal challenges by those that were not approved to build in the RUE.
Who decided to have a RUE to begin with?
Early buyers into the neighborhood were told (by the builder) the city required the easement as part of the community approval process. Later buyers, through emails with city employees, have been told the easement was entirely the builder's idea. Confusing? Yes. The city has given their approval for this First Amendment to allow retaining walls in the RUE.
How many votes are needed for this amendment to pass?
67% of all properties need to vote YES to pass it. This is NOT 67% of submitted ballots. Not voting (ABSTAIN) is equivalent to a NO vote. This amendment needs over 605 YES votes to pass.
Did you leave out any additional concerns homeowners may have?
Yes. There are homeowner concerns regarding potential code violations on Lennar's part. The slope angle may be dangerous.
There is another route called a "quitclaim" where the HOA can give up their right to the easement. A quitclaim will remove the HOA's rights to access the slope but does not alter the regulations regarding what can be built in the area.
Homeowners have pointed out that Lennar's model homes violate the CC&Rs with their own construction within the easement.
The following are questions submitted by homeowners:
If homeowners have bought their homes with RUE from Lennar builder and signed the contract to abide by the HOA CCRs and bylaws, what right do they have to sue the HOA? Especially when they have built the walls without HOA approvals. Note: HOA was not involved in their home purchase transaction.
I'm not a lawyer and have not sought an answer to this question from one. My first instinct is they don't have a position to sue. However, the plot plan (final map) states "retaining walls may be added, deleted, or changed as field conditions warrant." The plot plan does have priority over HOA CC&Rs. So... I don't know.
Isn't it the responsibility of the homeowners to check the RUE limitations surrounding of the home etc., before buying their home? How is it fair for RUE homeowners threatening the HOA with lawsuits if CCRs are not amended?
Yes, all homeowners are responsible for finding out all limitations they may face when it comes to what is allowed on the property.
If HOA has wrongly approved one or more plans to construct in the RUE, does it give the right to the RUE homeowners to sue the HOA?
Not a lawyer. Could the homeowners that were not approved to build in the RUE be frustrated about having different rules for different owners? Probably, and equal application of the rules is the duty of the HOA.
HOA had to spend money for legal counsel advise, CCRs amendment poll etc. to help RUE homeowners, why can't RUE homeowners reimburse these expenses for HOA?
I have no insight into the motivations of the association. The association should not be spending money for the benefit of individual homeowners. The HOA has a responsibility to treat all owners equally.
If CCR amendment is not passed and RUE homeowners want to pursue quit claims process. Assume that quit claims process is approved legitimately, who will bear the expenses of quit claim process?
I can imagine those not personally involved in the RUE situation will not like HOA money being spent this way.
Why am I seeing a mis-guided addendum in the RUE poll where it states that if the CCRs are not amended then HOA has to bear the cost of quit claim for RUE homeowners. Everyone should know that this addendum does not have any legal authenticity as it is not conclusive. Why will HOA bear the expenses? Isn't it the responsibility of the homeowners to bear the expenses of HOA?
I believe this is referring to the large paragraph on the last page of the letter sent to homeowners dated January 22, 2025. It states the cost per lot to record the quitclaim deed is approximately $500-$750 per lot. With approximately 300 lots with a RUE the total could cost over $150,000.