Carports might be more common than basketball goals in the driveways of Oak Forest, where many of the original homes in the historic Northwest Houston neighborhood were built with one-car garages.
The carport attached to the front of Jason Spencer’s home has been there since long before he bought it two years ago, and it’s one of four on his block on Lamonte Lane in Section 13. So he was taken aback last month when he and his wife, Helen, received a letter from the Oak Forest Homeowners Association (OFHA), which said the carport was in violation of the community’s longstanding deed restrictions because it was situated too close to the front of the property line.
The letter told the Spencers they had 15 days to remove the 18-year-old carport or the violation would be reported to the City of Houston, which enforces deed restrictions in the neighborhood.
“When we bought this house, it was pretty much an eyesore on our street. We’ve invested close to $100,000 to fixing up this house, and it’s gone from one of the ugliest on the street to one of the nicest,” Jason Spencer said. “And the HOA wants to crack down on me because of this carport that’s been there at least 18, 19 years? If you had a baby when my carport was put in place, they would be a senior at Waltrip High School now.”
Spencer pushed back against the OFHA, which is run by volunteers, sharing his experience on social networking site Nextdoor and asking the organization to rescind its violation notice. He pointed out language in the Section 13 deed restrictions that says homeowners are not liable for violations committed before their ownership and also informed the HOA that the state of Texas has a four-year statute of limitation on the enforcement of deed restrictions.
Spencer also bought a silver-and-black flag that includes an image of a cannon and the phrase, “COME AND TAKE IT,” which now hangs from the top of his carport.
The OFHA’s Deed Restriction & Architectural Review Committee, after being asked to reconsider by the Spencers, told them Nov. 8 that it had voted unanimously to uphold the violation notice. The homeowners’ organization then reversed course Nov. 17, saying that in light of concerns raised by the Spencers and consultation with legal counsel, “… we hereby withdraw the demand that was previously sent to you and will not pursue further action regarding the demolition of your carport at this time.”
“It sounds like the HOA did the right thing and backed off once they talked to their lawyers,” said Omar Izfar, a Houston real estate attorney with Wilson Cribbs + Goren.
Izfar, who has experience with deed restrictions, said violations that are more than four years old are “very difficult” to effectively litigate. He also said that if several homes in Oak Forest have carports that violate the deed restrictions – meaning they are within 25 feet of the front property line or within 5 feet of the side property line – then a judge could rule that the “prevalence of the violation rises to the level where that particular restriction has been waived.”
It is unclear whether the OFHA will pursue enforcement of similar violations of the deed restrictions, which have not been updated since they were written in the early 1950s. The OFHA indicated in its Nov. 17 letter to the Spencers that it could revisit the issue when their home is sold.
The Spencers had their home listed for sale before receiving the violation notice and have since pulled it off the market because of the uncertainty surrounding the carport. In a Nov. 1 email to Jason Spencer, OFHA president Elizabeth Villarreal said the violation notice stemmed from “our board’s knowledge that more and more, mortgage companies are insisting existing carports be removed prior to closing because they are prohibited in our deed restrictions.”
A Wednesday morning statement sent by Villarreal and attributed to Jessi Munsey, the chair of the OFHA’s Deed Restriction & Architectural Review Committee, said that when Munsey purchased her home nearly eight years ago, “The city had the seller remove the carport as they would not sign off on the final renovation permits until it was removed.”
In its Nov. 17 letter telling the Spencers the violation notice was being rescinded, the OFHA said, “This decision is not and should not be construed to be an abandonment or waiver of the applicable deed restrictions, nor is it a finding that your carport is compliant. We reserve the right to proceed (with) appropriate enforcement in the event of a future sale of your property or any similarly situated property. We encourage you to disclose the deed restrictions to any potential buyer of your property and to instruct your real estate agent to do likewise.”
The Spencers’ real estate agent, Creston Inderrieden of IndyQuest Properties, said he has lived and worked in the area since 2006 and had never before encountered an issue with carports. He said there are at least 100 of them in Oak Forest, where many homeowners use their garages as living space and carports for parking, so removing them could lower those property values.
Inderrieden also said the OFHA’s stance on carports within 25 feet of the front property line “casts a cloud” on properties that have them. The OFHA’s statements did not answer questions from The Leader seeking to determine how many homeowners have received violation notices regarding carports and whether the OFHA would continue to send such notices moving forward, saying only that it will not forward a resident’s complaint about the Spencers’ carport to the city.
“In this current situation, for sure, I’ve got to disclose and make people aware,” Inderrieden said. “That creates uncertainty, and uncertainty is not good for business. People want certainty. They want to be clear on what’s in bounds and out of bounds. I think the HOA has not done a good job to help the homeowners in the neighborhood, quite frankly.”
The OFHA said it receives and forwards deed restriction complaints from residents but does not investigate potential violations, leaving the city to determine whether to enforce the deed restrictions. Moving forward, the OFHA said it is considering referring residents with complaints directly to the city.
The OFHA also said it “will revisit the wording of our (violation) letter and we will make an effort to clarify the process for all residents. One of the ways we plan to help residents understand how deed restrictions are enforced is by having a representative from the City of Houston come speak at an OFHA meeting early next year.”
In the meantime, the Spencers want more clarity about their carport and whether they should be concerned about it as they try to sell their home. They also want the OFHA to admit that the violation notice they received should never have been sent.
“While we believe the law is clearly on our side, we are hoping the HOA will do the right thing and acknowledge that the carport is fully free from any enforcement action now or in the future,” Jason Spencer said. “We don’t want a future buyer to have to worry about this issue coming up again. We want it settled once and for all for us and for the hundreds of other Oak Forest residents who are in the same situation. We shouldn’t have to live with this threat hanging over us. Our hope is to put the house back on the market in the coming months.”