The deed restrictions override any design rules of thumb, obviously. So the whole issue revolves around the phrase "two stories in height." If that phrase is not closely defined anywhere, and it probably isn't, otherwise you wouldn't be posting this, then you have a potentially subjective, murky interpretation problem.

I might interpret "two stories in height" as "height above ground," where the basement doesn't come into this at all. That's because every jurisdiction I've worked in mandates a total building height limit, above the finished grade-- not a "story" limit. But my opinion has no bearing in the matter, as I'm not a decider in the issue-- YMMV.

You have to work it out between yourself and the enforcers/stakeholders of the deed restrictions, e.g. HOA, local jurisdiction, etc. but IMO it probably isn't worth a protracted legal battle.

It actually is worth a protracted legal battle and I am fine with that if I have a chance to win. You can't work out covenants and restrictions without an amendment to them. The biggest problem with deed restrictions is that there are no defined stakeholders. They give every current and future resident standing to bring suit on behalf of the neighborhood without prejudice. For example, I can buy a house in a neighborhood that has had relaxed deed restrictions for 28 years and sue everyone who has an outbuilding to have them removed.

Our neighborhood has the same restriction, but commonly has finished attic spaces. I believe our HOA has interpreted it as a statement of overall height and not maximizing the space within the existing structure.

i.e. your height has not changed.

Where it MIGHT get dicey, IMO, is if you were to try to put in more windows and a dormer into the attic space - then you might be at 2.5 stories..... (even though your height hasn't changed...)

Bry, as you know, you almost always have a theoretical "chance to win," and you can always pay somebody to act as an expert witness to give you the opinion you want. But the whole thing is still murky, time/energy/money consuming, and a right royal PITA. You could spend a month doing legal research, parsing "two stories in height," looking for a precise legal definition, and you'd still find someone to dispute it.

And while you could "detail" the CC+R's, deed restrictions, etc. through the courts, IMO it comes under the heading of starting trouble where there ain't none, which won't likely make you any friends in your new neighborhood. Now that might not even matter to you, but your own friends and family might care. I'm sure they'd rather you spent time with them, instead of hanging out at the law library!

As an update - First, let me apologize for asking here and then turning around and just calling my attorney. This is one of those "time is of the essence" questions and doing a bit of research, I suddenly started questioning my rights to not only finish the attic but also to finish the existing basement.

According to the attorney (my attorney forwarded me an opinion from someone who handles these things) - the covenants can't stop you from doing whatever you want to the inside of an existing house that was previously approved by the architecture [board]. He said I can do anything I want that is allowed in the building code and there is nothing that the HOA can do to stop me. Aside from the fact that they will never try, because it is a loser to begin with and no attorney will take it, it would a fairly short and painless legal battle as this has already been tested in the courts. So if anyone has this question in the future that is what my attorney told me.

@ scone - I am specifically not interested in a legal battle, and one of the problems with deed restrictions is that everything is allowed until it is not. There is a deed restriction against out buildings and above ground pools in the neighborhood and there are 3 outbuildings and 1 above ground pool on a street with 15 houses. I know with deed restrictions that it is better to ask for forgiveness than permission and most neighbors keep things exactly how you described, not wanting to bother. But at the same time I want some coverage if I decide to do it.

As for whether it is worth it - The attic is about 1,200 square feet of 8' or better ceilings, even discounted significantly for attic space that is well over $120,000 bump in appraisal and price for a space that will cost me no more than $30,000 to finish well.

^ O.K., that works (sounds like Texas, actually). So does this mean you're thinking of this house as a flip, or a short term investment, i.e. fix up the attic as finished space, appraise, resell, rinse, repeat? Or is this a permanent home? I'm kind of confused as to your intent, since you decided to sell the other lot.

Sounds like my experience and that you are not altering the exterior at all - i.e. there are enough windows, etc.

First, let me apologize for asking here and then turning around and just calling my attorney.

No apologies needed!

It's refreshing to see a poster seek expert opinion rather than cue a choir of self-annointed experts.

In an area I used to build in, one NIMBY routinely tried to scare away all us wicked in-fill builders by sending out registered letters containing deed restrictions from 30 years earlier that had long been superseded by municipal by-laws.

Incidentally, where I am now, converting an attic to finished conditioned living space is verboten without a variance. Which are never given beforehand, but only after when a homeowner/builder is caught.

*****

I detest how "flip" has become short-hand for the hassle, expense, time and uncertainty of major renovations yielding small-time entrepreneurs more than they cost. Thanks HGTV!

So does this mean you're thinking of this house as a flip, or a short term investment, i.e. fix up the attic as finished space, appraise, resell, rinse, repeat? Or is this a permanent home? I'm kind of confused as to your intent, since you decided to sell the other lot.

It is not a flip, but if I can spend $30,000 to leverage out another $75,000, I will. So I guess it is a short term investment of sorts, I just will not be selling it (but resale is always something I keep in mind).

I was on our neighborhoods architectural review committee for three years. Before that, there was a lawsuit and the judge said the most important thing was for the HOA to stay consistent with their decisions. HOAs cannot practice selective enforcement.

I agree with your attorney. As long as there are no exterior changes you do not require approval from the HOA.

I would be concerned that you are in compliance with the TOWN's building code.

It is not very hard to stay in compliance with local building codes. In this area there are relatively few ordinances or zoning laws so it is pretty much just grabbing the code book that the city has adopted.

As I said before, the original owners designed it to be finished, the electric and lighting is there, it is fully framed, has the subfloor and is even framed for skylights that they didn't put in. It needs drywall paint and flooring and it will be done.

Was the work done with a permit and us it recorded with the town? Could it be if needed when you go to sell it and your buyer needs a c of o to obtain a mortgage or insurance? I'm not suggesting you stir up issues that botch your deal or result in triggering an increase in the tax assessment but you also want to not be caught in a costly surprise. As in having to redo something that didn't meet code.

Yes the work was permitted, and there is nothing to record with the town, not to mention that the final permit to finish the work will clear code issues. It was not an improvement it was built that way and while it was covered by the original building permit, things sometimes change and may need slight modifications (you have to bring old work to code when you get a new inspection), but in this case there is really little that would need changing, the home is over-engineered and will far exceed current building codes. I am not sure where you are from but a new C of O is typically not required for an existing home sale in most U.S. areas, nor does insurance typically care about prior unpermitted work. If a Certificate of Occupancy inspection was required for a home sale no one could ever sell their home, as no house older than 15 years would meet current codes.

No where in here am I suggesting doing work without a permit, in fact, it never crossed my mind. This was a question on deed restrictions and nothing more.

In my town, a suburb of NY, improvements prior to 1971 are grandfathered. However subsequent improvements can render even those void. Permits often trigger re-assessments, so we try to make improvements that don't require them (i.e., moving the pipes in renovating a kitchen or bathroom). Improvements are often made without applying for permits, but hopefully to code so that if/when a permit IS required, there won't be any problem getting it. Sorry to divert the discussion to an area that is apparently irrelevant to your situation. Sounds to me like you have little to be concerned with than unhappy neighbors, and can't see what could make them unhappy about a finished attic unless it is accompanied by a half dozen extra cars in the driveway:)

no building shall be permitted to remain on a lot other than one detached single family home not to exceed two stories in height

In America, ground level is considered the first story or 1st floor. Second story or 2nd floor is one story above ground level. Basement does not count as a story. This is different in Europe where ground level is considered the zero level and first story is one level up.

https://en.wikipedia.org/wiki/Storey

From what I would interpret the zoning code means they do not want houses with a third floor above ground as they should not exceed two american stories. Also considering the word "height" in the code means it shall not be taller than two American stories as looking at the house from the outside aka from the ground-up height, which may help to understand why the basement does not apply to the house's height. I have never heard of a basement being considered a story or floor in the first place now that we are talking about it.

If it is a split level above ground then this could get complicated as you would have half a story above ground.

So, have it approved by your zoning commission and you should be good to go. It all depends on how the code is interpreted and they should not consider the basement as a story or a floor here in America. If they have a problem with the wording being confusing they need to amend their zoning code. It makes sense to me and should make sense to most people. Don't make a house with 3 floors above grade is the literal meaning of "not to exceed two stories in height (in America)."

I was pretty sure the basement was allowed, it is the attic space that I am curious about.

I don't understand a 2 story restriction when they want such steep roofs. The roof on the house is more than 16' tall, I just can't see there being any benefit to requiring a 10/12 pitch and not allowing people to finish the space.

I think you are understanding it wrong. Two stories would be allowed. Three stories would not as that would exceed two stories. Basement does not count as a story.

Or, am I misunderstanding it? Does this house already have two stories not including the basement and you want the attic finished also?

It may not matter either way, they might just be discussing the house's height. Finishing an attic space without raising the roof wouldn't affect the house's height. It would be good to ask the city.

They may want steep roofs to achieve a consistent architectural look, or they may permit them because they have functional purposes (i.e., energy efficiency, snow and rain removal, etc.). If a homeowner wants to use the area under the pitched roof for living space, I don't think that would be taken as a challenge to the overall height and architectural guidelines. If the intent is to restrict the number of people occupying a dwelling, that is usually done by number of bathrooms, rules on their relationship, etc.

It is an existing house that is 2 stories on an unfinished basement. The most compelling reasons for our interest are that the house has the nicest attic and basement spaces I have ever seen. The basement has 11'6" ceilings and the attic has about 1,200 potential square feet. There are currently not stairs to the attic but it is designed for stairs (there is a landing area that looks out a window but no stairs going up, and in the attic there are LVLs that form an opening that has been closed off). It is a fairly laid back neighborhood as people have spent a lot of money building brick outbuildings and above ground pools with permanent decks that are obviously not allowed in the deed restrictions. So I suspect I can do anything I want and no one will say anything. However, I am not a big fan of financial risk based on the idea that I can probably get away with it.

I think JDS removed his comment but I kind of agree with him. I can't see how an attic conversion, no matter how entitled I feel to do it, is anything other than a story. I still feel like doing an attic conversion will be against the deed restrictions, however, I now have legal cover from an attorney that says it is OK.

I now have legal cover from an attorney that says it is OK.

Well, you have an opinion, but that does not necessarily give you cover, because this attorney is not the adjudicating authority. The decisions of the HOA are the only things that matter, in the end, not opinions from architects or others.

And you can't count on whatever the HOA has allowed in the past-- the boards change. The board might catch wind of you fixing up the attic, and say, effectively, "we don't care what your attorney said, and we don't care what has been done before, we're now taking a stand against it, period. Tear it out." And then everything goes pear shaped.

IIWY, I'd write to the HOA board, describe what you want to do, and ask flat out if this is going to be allowed. You can get the lawyer to draft it. You want the HOA to reply, in writing, that this is o.k. Now, they might come back with some sort of weasel words, but at least you have a negotiation going.

I agree, discuss with them you are not raising the height of the building, just using space already there. I have a feeling that the code involves the height of the building so people dont make a house with three stories with a roof on top of that.

By an odd coincidence, I am designing around HOA restrictions right now, along with town setbacks, environmental overlay, etc. My strategy is not to assume anything if I can help it, but to make sure, as far as possible, that I have a clear path to my goal, documented all the way. There is always risk, but I work hard to minimize it.

So I check everything, and recheck, especially now. Especially since four lawyers recently moved into the neighborhood, and have started stirring the pot a bit, reviving a formerly moribund HOA. I wouldn't be surprised if the next meeting included a suggestion to raise the dues to accumulate a war chest. My point is, change happens, you never know. Word to the wise.

So that's my process, FWIW, I hope it gives you some useful background info. But in a real sense, it's irrelevant-- no one on the internet is a decider in the issue.

In your situation, even if you and your lawyer believe that a finished attic would be in compliance, a buyer might not agree. (Personally, when I bid on a house, I never believe anything the owner says about their property until I check it. Massive due diligence.)

But a statement from the HOA, however toothless, carries some weight, or it would with me, if only because it's a less interested third party. So personally, I would seek that out. Of course, if the HOA then says "no way, no how" you've got an interesting difference of opinion.

What I would not advise under any circumstances, is to avoid contacting the HOA, and finish off the attic without consulting them. And surely you would get permits?

Be that as it may, it sounds like you've made up your mind, so I'm offering the above as general food for thought. Of course, I don't have the complete picture, either-- I'm not sure if this is a flip opportunity or a prospective home for yourself-- that influences the whole deal.