June 1974 - The covenants were recorded at the Dare County of Register of Deeds.
1974 Covenants PDF - One-Rule for All Era: This excerpt shows that the main residence should only be occupied by ONE FAMILY, and that accessory structures cannot be rented to anyone that isn't "family" of the main structure. In other words, one family for the whole property or one rule for all property owners. So renting your main dwelling and/or accessory structure ("the property") to more than one family now violates the 2011 amendment. Note the "mode of operation" for STR’s has not changed, nor have the available "technologies" that predate the 2011 amendment.
July 2011 - Chicahauk amendment recorded at the Dare County Register of Deeds.
2011 Amended Covenants PDF - Two-Rule Era: The new 2011 language shows "multiple families" in the main structure, and that accessory structures or rooms inside the main structure cannot be rented to any third parties if you are a permanent resident. Please note the "one family" rule has been removed from the original 1974 covenants. Investors or non-residents can now rent their properties to "multiple families" under the the 2011 amendment (including any accessory structures), while the full time resident cannot rent a single room over the garage or their accessory structures.
Dynamics have changed on the OBX since 1974. Notably, the rental and real estate industries. They have naturally morphed in a vacation destination like the Outer Banks. Well before 2011, Zillow was on trajectory and alternative rental models such as Airbnb were in full swing. The 50 year history of unenforced rental use included both weekly rentals and other STR rental models such as Airbnb (2008), VRB0 (1995), online ads (1994).
CPOA Fining Procedure: To differentiate one short term rental as a "compliant" and another as "non-compliant" is misleading as an enforcement mechanism. A short term rental (STR) is generally considered a property rented for 90 days or less as defined by the North Carolina Vacation Rental Act (NC GS 42A). Therefore, most rentals in Chicahauk, and the rest of the Outer Banks remain a short term rental.
ITEMS OF FOCUS
1. Historical Use: Since 1974, property owners have utilized various vacation rental advertising platforms for short term rentals, emphasizing the long-standing nature of this practice.
2. Waiver in Restriction: From 1974 to 2024, Chicahauk waived restrictions on all short-term rental models.
3. Vision Transformation in 2011: In 2011, there's a notable shift from the initial "primary/second home" “one-family” vision to a model more akin to short-term vacation rentals utilized by Chicahauk property owners since 1974.
4. Breach of Covenant Principles: The change in the 2011 Covenants by the CPOA, without adhering to the legal framework established in 1974, could be seen as a breach of the principles laid out during the initial community formation. A no-rental/one-family community to a mixed use of long-standing short term rental models.
5. Impracticality of Enforcement: Given the diversity of rental models currently in use and the budget constraints of the HOA, the fines are not enforceable in a fair or reasonable manner, further adding to the discriminatory actions taken by the HOA.
6. Public Perception of Value: 220 transactions have closed in Chicahauk since 2011, leaving the motivation for those purchases unclear. Definition is of the essence.
7. 2011 Amendment Divergence: The amendment by the CPOA is alleged to have sharply departed from the community's original vision, affecting property rights and encouraging an anti-competitive stance towards selected short-term rentals.
8. Non-Performance: Following brief discussion of the CPOA survey results on "changing the covenants," in favor of change, the HOA opted not to take further action with community interests and continued to fine home owners.
9. Erosion of Property Rights: By enforcing restrictions that were previously waived, the HOA might be unlawfully eroding established property rights, a situation that calls for judicial intervention to prevent any unjust deprivation of property rights.
10. No Viable Method of Enforcement: There are no viable methods for policing, proving, and fining homeowners in an equitable manner without incurring unreasonable expense to the insignificant HOA fees.
11. Superficial Solutions: Procedural amendments might only offer a band-aid solution, addressing the symptoms of the issue rather than the root cause, which is the alleged discriminatory enforcement of property rights under the HOA's current policies.
12. Ambiguous Survey of the Issue: An undefined survey was distributed to property owners following pressure on the Board to reconsider its restrictive and discriminatory stance on property rights. There was no mention of short-term rental concerns in the survey.
13. Majority of Survey Respondents: While most survey respondents indicated a preference for “some” change, the survey failed to inform owners of the short-term rental concerns that prompted its circulation.
14. Unlawful Amendments: The 2011 Amendment, which contradicts the original 1974 declaration, improperly limits the rights of property owners without adhering to the due process or adhering to current legal standards regarding property use.
15. Selective Oversight: The HOA selectively enforced short term rentals by monitoring only a portion of the collective short-term rental marketplace for “compliance.”
16. Method of Enforcement: The HOA has imposed formal fines on homeowners solely for “advertising” specific “types” of short-term rentals, and without verifiable means of occupancy.
17. Justification for Enforcement: The HOA's reasoning for enforcing the waiver after 50 years was to “respond” to recent complaints (from select individuals) on those using long-standing short term rental platforms in Chicahauk.
18. Pre-2011 Rental Models: All short-term rental models relevant to this summary were well established before the implementation of the 2011 amendment.
19. Unreasonable Cost to Enforce: No viable method exists to enforce or reconcile all the various rental models currently available today against short term rental properties listed in Chicahauk at a given time.
20. Covenant Reversion: The HOA through procedure could revert to the original 1974 covenants and return to covenants with clear and equitable rules for short term rentals. Simply put, a single (one) family occupying an entire property.
