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Homeowner vs. Height Restriction

Written by Bert Rush on April 5th, 2010

The Riviera, overlooking Clear Lake

“You were serious about that?”

KELSEYVILLE, CA–The Clear Lake Riviera Community Association governs a common interest development of 2,810 lots overlooking Clear Lake, in northern California.  About half the lots are improved with homes.

The Riviera CC&Rs provide for an Architectural Control and Planning Committee to ensure that new construction is harmonious with the surroundings and adjacent homes.  Sometime prior to 1995 the architectural committee issued building guidelines stating, “maximum roof height must not exceed seventeen (17) feet above street level or control point for that lot.”

In early 2005 Mr. and Mrs. Robert Cramer bought a lot in Riviera and drew plans for a home.  They submitted the plans to the architectural committee and got approval with a note, “structure height not to exceed 17 feet from control point of lot.”  Since it was a sloping lot, the control point (marked on the plans) was the center of the lot.

Mr. Cramer acted as his own general contractor.  By mid-summer 2005 Cramer completed grading and installed forms for his foundation.  But a neighbor complained, so members of the architectural committee met with Cramer and told him if he chose to build where the forms were placed the house would be too high.  Later, Cramer did not recall a warning.

Cramer poured his foundation, and in ensuing months the committee sent two notices that the construction appeared to depart from approved plans.  Again they warned the house could be too high.

But Cramer forged ahead and, yes, the completed house varied from the plans.  It was bigger and exceeded the height restriction by nine feet.  Worse, it blocked lake views enjoyed by two neighbors.

When the Cramers asked for a variance to approve the house as built, the committee faced a hard decision.  The variance was denied.

So it happened that the homeowners association sued the Cramers to bring the house into compliance.

At trial, Cramer denied being warned by the committee but admitted he had never attempted to measure the height as work on his house progressed.  He said he’d relied on his grading contractor to set the proper elevation, but the contractor denied it.

Cramer argued he should not be forced to tear down the house, and an expert witness said it could cost $200,000 to save it.  The expert said to preserve the structure Cramer would have to cut it in half, remove it from the foundation, re-grade the lot, and move it back on a new foundation.

Neighbors, on the other hand, were adamant saying the house blocked their views and diminished their property values.

The trial court ruled in favor of the association, and ordered the house be removed or made compliant.  The Cramers appealed.

Lake County Courthouse

On appeal, Cramer disputed authority of the architectural committee saying the height restriction was not properly created.  He also argued that fixing the violation would be costly and create hardship for his family.  At most, he said, he should have to pay money damages to a few neighbors.

This was a tough case.  Court-ordered injunctions and forced removal of improvements are rare.

But the court of appeals upheld the trial court decision, finding the association has consistently enforced the height restriction since 1995, and Cramer blatantly disregarded their advice.  Nine feet, the court agreed, is no “trivial” violation.

Moral:  Homeowner associations are a force to be reckoned with.  They represent the community you bought into, and their decisions may be legally enforced.

The case is reported as Clear Lake Riviera Community Association v. Robert Cramer, 182 Cal.App.4th 459, 105 Cal.Rptr.3d 815 (2010).

 

For Love or Money

Written by Bert Rush on March 29th, 2010

A family tragedy; then came forgery.

GREAT FALLS, VA–With savings from their contracting business, Wu-Hung and Yeh-Mei Chen came to America.

The plan was to save their sons, Raymond and Edward, from Taiwan’s mandatory military service, and give them a better life. Once here the family settled in this suburb of Washington, DC.

Coming to America: The Chen family home

The Chens bought an upscale home on two acres, and invested in four other residential properties.  Raymond, the eldest son, went to college and majored in business so he could manage the family holdings.

But the family plan began to unravel when young Edward fell in love with Mandy, a high-school dropout and teenage mom.  His mother objected–this was not the “nice Chinese girl” she wanted for her son.

Yeh-Mei was hurt and angry, and she badgered Edward to stop seeing Mandy.  Edward fought with her, and there were heated family arguments.  Finally, the stress Edward was feeling became unbearable.  He bought a 30-30 Winchester rifle at K-Mart, and shot his mother, father and brother in their beds.

Edward told Mandy they could now be together.  He told neighbors and relatives back in Taiwan that his parents and brother had died in an auto accident.  He locked up the house, with the victims still inside, and moved in with Mandy.

Edward Chen

Edward Chen

Mandy got pregnant and Edward married her.  Soon they had a new baby daughter.

Edward lived off rental incomes for a while, but with expensive tastes and mounting bills decided to start selling the family properties.

All of the Chen properties were held in a family trust, with Raymond Chen appointed as trustee.  Edward got a new driver’s license with his photo and Raymond’s name.

Edward went about selling the properties, impersonating his dead brother.  Edward and Mandy divorced.

The family home was the last to be sold.  It was now more than four years since the killings, and the victims had yet to be removed.  But while it sat vacant, a water pipe had failed and flooded much of the house.  Floors, walls and carpeting were damaged or ruined.  There was mold.

Edward cleaned up the blood stains, and ditched his victims’ bodies in Chesapeake Bay.  He offered the house “as is” at a big discount.

A young couple bought the house, and rehabilitated it from top to bottom.

Wei-Meh Chen

Yeh Mei Chen

Edward got a new girlfriend and they began to live together.  In an unguarded moment, he told the girlfriend that he’d killed his parents and brother.  The girlfriend saw danger, and went to the police.

The police interviewed Mandy, who also knew of the killings, and Edward was arrested.

As reported by the Washington Post, Edward was surprised to be arrested and he made a taped confession.  But when the confession was thrown out, as Edward had not been read his Miranda rights, Fairfax County prosecutors became worried about their case.  They had no murder weapon, and couldn’t find the victims’ remains.  All they had to go on were statements of an ex-wife and former girlfriend.

Edward eventually took a plea bargain.  He was convicted of three counts of first degree murder, and sentenced to 36 years in prison.  He was 27 years old.

But now buyers of the five Chen properties had big problems.  They realized deeds they got from “Raymond Chen,” as trustee of the family trust, were forgeries.  The deeds were void, and ownership of the properties remained in the trust.

The trust, it turned out, had as beneficiaries the father, mother, and their “descendants.”  Upon death of the parents and all descendants, trust assets would be given to a hospital in Taiwan.

So here’s the deal:  After the killings the only “descendant” was Edward–his daughter would be born two years later.  But the law says that a killer can’t benefit from the death of his victim (the so-called “Slayer’s Rule”), so Edward could not inherit the trust assets.  But what about Edward’s daughter, was her inheritance also barred by the Slayer’s Rule? And, if so, were the buyers of the five Chen properties now guests of the hospital in Taiwan?

For these buyers, this was the proverbial riddle wrapped in an enigma….  What to do???

The buyers had title insurance, and title companies paid for lawsuits to quiet title.  A legal guardian was appointed for Edward’s minor daughter.  In time the hospital released its claims.  Title companies contributed to a $1.2 million settlement with the daughter, and five titles were confirmed by court order.  The buyers got to watch new deeds get recorded in Fairfax County land records.

Case(s) closed.

Moral:  The risk of identity theft, impersonation, forgery–whatever you choose to call it–can be covered by title insurance.