Condo Column: When a home is not a home

“There’s no place like home.”

- Dorothy, from the Wizard of Oz

I ran across a case recently that I thought might be of interest. Most residential associations are just that, places where structures are to be used for residential units. But rarely is there a fight over what exactly “residential” means.

One couple in West Virginia has decided to define “residence” in a different way. Richard and Sarah Altman bought a lot in the Wilkinson Subdivision in Wheeling, West Virginia. The covenants of the subdivision require that all lots be used for residential purposes. Seemingly straightforward, and just like all condominiums I have seen in my practice.

The Altmans decided to push the boundaries of the definition of what is residential. The Altmans, who admittedly live a short distance away outside the subdivision, constructed a 2,700-square-foot building on their lot. The residents thought it not a residential home. They described it as “a large pole barn or garage structure.” (A “pole barn” is a structure usually described as a farm building with no foundation and with sides usually consisting of corrugated steel or aluminum panels supported by poles set in the ground.)

Seven owners filed a Petition for Injunctive Relief (a request by a party to have a court issue a ruling that something must stop, in this case the construction of the structure) against the Altmans in which they claimed the Altmans were using the lot for nonresidential purposes in violation of the covenants of the subdivision. They asked to have it taken down.

The Altmans responded noting that while they lived off site and would not be using the structure for a residence, the issue was moot because they were constructing a dwelling to attach to the structure that would include one bedroom, one bathroom and a kitchen with a total footprint of an additional 384 square feet. In other words, about 10% residential and 90% something else. As the Altmans noted to the Court, the primary use was to be to store a large recreational vehicle in the structure, and since the structure would have no adverse affect on the other owners, all was well.

At a preliminary hearing, the trial court found in favor of the multiple lot owners and issued the preliminary injunction that prohibited the Altmans from building further until after the trial, if ever. The trial court noted the Altmans were “using the property in a manner not intended by the drafter of the restrictive covenants.” It further noted the covenants were drafted to prevent the very type of misuse undertaken by the Altmans. The Altmans appealed to the state supreme court where they lost again. The Altmans unsuccessfully argued the covenants did not say what the minimum size for homes was and what the maximum size of garages was.

They additionally argued there was nothing that said they had to use the dwelling as a primary residence. In this case the court noted the document expressed the clear intent that the character of the neighborhood would be that of a residential one with not a garage, but a true dwelling to be erected on each lot. As the court noted, a dwelling has been held to apply to the use of a structure as well as to the character of the building. In this case, the Court noted, “(w)hile an attached garage may be a proper and reasonable appurtenance to a dwelling, where the dwelling is so dwarfed by the garage such that the use and character of the entire structure is that of a garage rather than a dwelling,” the structure is clearly not being used for residential purposes as required.

Having affirmed the trial court’s ruling that approved the preliminary injunction, it sent the matter back to the trial court to have a full hearing. That was in late May of this year. If I ever run across the final decision, I will let you know what the final ruling was. Too often in the law, parties contort the language far away from the plain meaning of the words in an attempt to get to a result-driven decision. In this case, at least so far, the courts said they would not allow linguistic gymnastics such that what would have been 90% garage and 10% rarely, if ever, used residential area was really a home and not a garage.

The solution? Well, the documents I draft use language that notes units are to be primarily used as a residence, “as determined by the Board of Directors” subject to the right of an affected owner to appeal that decision to the owners at the next association meeting, both to determine whether the Board that has been elected to operate the Association got the matter right, and to reflect the will of the community into which the affected owner has willing purchased.

Attorney Robert E. Ducharme is a former teacher whose civil practice is limited to condominium law, primarily in Rockingham and Strafford counties. He can be reached at red@newhampshirecondolaw.com and Ducharme Law, P.L.L.C., found at www.newhampshirecondolaw.com.

This article originally appeared on Portsmouth Herald: Condo Column: When a home is not a home