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 > CC&R dated 1973 says no RVs, trailers, boats can be stored

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Timmo!

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Posted: 02/23/21 07:50am Link  |  Print  |  Notify Moderator

What do you call rules--that cannot be enforced?

Guidelines.

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ItsyRV

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Posted: 02/23/21 11:54am Link  |  Print  |  Notify Moderator

kmb1966 wrote:

After speaking with the code enforcement division, and the city planner, there is no CITY code I would be violating at this particular residence, parking the dutchstar the way I have indicated, which is, on the concrete pad that is to the left of the house along the side of the property and behind the gate.

You're confusing two issues. Most municipalities do not enforce CC&R's. What you need from local codes isn't about enforcement but the definition of "parking" and "storage". Like AZ, NM also uses the "common meaning as defined by local authority". Even if the city or county has no rules on the RV, their definition of parking and storage would apply to the CC&Rs absent any specific wording in the CC&Rs.

kmb1966 wrote:

The 1973 CC&R document has not been updated since 1975 and indicates that it lasts 20 years. In which at that time "Auto renews" for 10 year successions unless there is a vote by the land owners to discontinue the CC&Rs or a portion of it. So, by that definition, the CC&R's are still valid, but there is no forum held to discuss the continuance or discontinuance of the rules or any part of the rules.

You're again confusing two issues. The CC&R are valid and enforceable per NMS Chapter 47. Absent any wording in the CC&R as to the abolishing or amending the CC&R, it resorts to the property owners to obtain a court acceptable agreement to eliminate or change the CC&R. Just because it's not written in the CC&R doesn't mean they can't be enforced through a private lawsuits. Any property owner can sue any other property owner for violating the CC&R. Based on NM case law, unless the the violation is against good public order, the courts generally uphold the CC&Rs.

kmb1966 wrote:

You can't change the rules because there is no forum held to update/change/delete any of the rules, so they just kinda go on and on.

Yes you can. NM Statutes say you have to obtain an agreement by the majority of property owners to change the CC&R if there is nothing in the document establishing a formal mechanism. A property owner opposed to the change can sue you and it would require a Judge to review the agreement and if the majority agreed to the change, it's changed. The process and procedures is a bit sketchy but there is ample cases in NM on this and your lawyer should be able to walk you through the process.

If there have been repeated, continuous and open violations with no enfacement, it appears that will go greatly in your favor if you sue to abolish or are sued to enforce the restriction. The easiest seems to come down to someone writing a formal document that the the majority agrees on and it survives any opposing court challenge.


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ArcticGabe

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Posted: 02/25/21 05:55pm Link  |  Print  |  Notify Moderator

ItsyRV wrote:

kmb1966 wrote:

After speaking with the code enforcement division, and the city planner, there is no CITY code I would be violating at this particular residence, parking the dutchstar the way I have indicated, which is, on the concrete pad that is to the left of the house along the side of the property and behind the gate.

You're confusing two issues. Most municipalities do not enforce CC&R's. What you need from local codes isn't about enforcement but the definition of "parking" and "storage". Like AZ, NM also uses the "common meaning as defined by local authority". Even if the city or county has no rules on the RV, their definition of parking and storage would apply to the CC&Rs absent any specific wording in the CC&Rs.

kmb1966 wrote:

The 1973 CC&R document has not been updated since 1975 and indicates that it lasts 20 years. In which at that time "Auto renews" for 10 year successions unless there is a vote by the land owners to discontinue the CC&Rs or a portion of it. So, by that definition, the CC&R's are still valid, but there is no forum held to discuss the continuance or discontinuance of the rules or any part of the rules.

You're again confusing two issues. The CC&R are valid and enforceable per NMS Chapter 47. Absent any wording in the CC&R as to the abolishing or amending the CC&R, it resorts to the property owners to obtain a court acceptable agreement to eliminate or change the CC&R. Just because it's not written in the CC&R doesn't mean they can't be enforced through a private lawsuits. Any property owner can sue any other property owner for violating the CC&R. Based on NM case law, unless the the violation is against good public order, the courts generally uphold the CC&Rs.

kmb1966 wrote:

You can't change the rules because there is no forum held to update/change/delete any of the rules, so they just kinda go on and on.

Yes you can. NM Statutes say you have to obtain an agreement by the majority of property owners to change the CC&R if there is nothing in the document establishing a formal mechanism. A property owner opposed to the change can sue you and it would require a Judge to review the agreement and if the majority agreed to the change, it's changed. The process and procedures is a bit sketchy but there is ample cases in NM on this and your lawyer should be able to walk you through the process.

If there have been repeated, continuous and open violations with no enfacement, it appears that will go greatly in your favor if you sue to abolish or are sued to enforce the restriction. The easiest seems to come down to someone writing a formal document that the the majority agrees on and it survives any opposing court challenge.


I was just getting ready to type up a lengthly reply with much of this same info, but Itsy beat me to it and saved me some typing (thanks, Itsy!)

How do I know? I just went through all of this myself. Each property owner has the right to enforce CC&Rs or deed restrictions. Just because there are a couple examples of violations, just means that those violations do not bother anyone enough to bring a suit against them. But if you violate across the street from someone who is particularly bothered by your violation, there is nothing stopping them from suing you. Now if there are many violations throughout the neighborhood, you can use that in your defense, and it will be up to the judge to determine if all of the existing violations suitably outweigh your neighbor's right to enforce the rules.

Basically, fighting against this by a blatant violation and "seeing what happens" is risky. I'd think you'd be better off getting the required number of signatures to change or dissolve the CC&Rs. Or go move elsewhere.

Best of luck to you, though. I do feel your pain.


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Mike134

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Posted: 02/26/21 05:50am Link  |  Print  |  Notify Moderator

kmb1966 wrote:

Hello, I am the original poster: I have an appointment to speak with a local attorney regarding this subject, so I will try to report back.


Did you go? Curious what he/she said.
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Posted: 02/26/21 09:53am Link  |  Print  |  Notify Moderator

Be interesting to see if the OP gets advice from the NM attorney, but Itsy and Arctic Gabe both posted the substance of how it could play out. Been to that particular rodeo more than once and the best advice was posted

"Basically, fighting against this by a blatant violation and "seeing what happens" is risky. I'd think you'd be better off getting the required number of signatures to change or dissolve the CC&Rs. Or go move elsewhere."

Tough thing about keyboard lawyering is making sure to not actually offer any advice. [emoticon]


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Bumpyroad

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Posted: 02/26/21 02:22pm Link  |  Print  |  Notify Moderator

If you sue to be able to park it, and you lose, it is probable that this restriction will be raised against all of your neighbors with "illegal" stuff parked on their property. you will have some mighty mad neighbors who won't be inviting you to the christmas/ec. party.
bumpy





kmb1966

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Posted: 02/27/21 08:06am Link  |  Print  |  Notify Moderator

Mike134 wrote:

kmb1966 wrote:

Hello, I am the original poster: I have an appointment to speak with a local attorney regarding this subject, so I will try to report back.


Did you go? Curious what he/she said.
This keyboard lawyering is tough, need to move my keyboard expertise on to something new. Last year it was Constitutional law, then later Infectious disease expert, not sure what 2021 holds.

Cheers


I have not yet been able to get in to speak with the attorney. But my overall plan is to continue to try to find a home that I know allows me to park the RV on the property. The housing market here is very very tight and not many to choose from for sale. If I end up purchasing this particular property, my plan is to store the RV in a covered storage facility for at least a year. I don't want to newly move into the neighborhood openly violating the CC&R rules even though many others are doing so. After we move in, there will be times we go get the motorhome out of storage to load up. Usually this takes a few days to load and unload. During that time, the motorhome will be inside the gate and not violating any city codes. I will see over that first year of having the RV there for loading and unloading if someone complains about those short time periods of the motorhome being there. Perhaps after getting to know the neighbors around me, they will become more accepting of the idea and I will be able to keep it on site longer. I guess I am going to take a wait and see approach while having a storage facility for the motorhome.

ferndaleflyer

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Posted: 02/27/21 08:28am Link  |  Print  |  Notify Moderator

My question is this. Since there is no evidence of anyone doing anything with this in over 50 years and there is no HOA, who is tasked with enforcing it as it appears the city (county)have no jurisdiction or desire?

Bumpyroad

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Posted: 02/27/21 08:33am Link  |  Print  |  Notify Moderator

ferndaleflyer wrote:

My question is this. Since there is no evidence of anyone doing anything with this in over 50 years and there is no HOA, who is tasked with enforcing it as it appears the city (county)have no jurisdiction or desire?


I think it has been made clear that the enforcement would be if a property owner would file a law suit against somebody breaking the rules.
bumpy

Grit dog

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Posted: 02/27/21 10:16am Link  |  Print  |  Notify Moderator

Good plan. Then “introduce” your RV to the house increasingly longer and see how it goes.
Have you looked up around Edgewood? Love it up there. Lived there twice over the years. Generally can park your stuff on your property too.
Quieter, not as hot in the summer. Gets a little more snow in the winter. Great area.


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