HOA legal-eze

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poolnewbies5874

poolnewbies5874

0
Aug 19, 2015
126
SW Ohio
We have a situation that I'm wondering if anyone has dealt with regarding an HOA. We built our pool in 2015 and our HOA only allowed for in-ground pools at the time. They have just sent a proposed amendment out to allow above ground pools.

We are fine with them allowing above-ground pools however their current justification states that privacy fences are already a requirement for pools which they are not.

Our question is if we oppose the amendment yet it passes because 80% of the people say yes will we be required to add a privacy fence around our pool? We have an acre of land and this is not feasible nor was it required when we installed our pool.

Should we a. Just send the opposition with no reasoning and see what happens? B. Send a letter with our opposition and justification of why we disagree? C. Say nothing and if it passes then argue that their current justification was wrong in the first place so the point is invalid? D. Say we approve but ask to be grandfathered in?

They are not pleasant people to work with and gave us a really hard time when we tried to install our pool. We are currently the only people in our neighborhood that this affects so we are taking this proposition more serious than anyone else.

We feel that this will probably pass as unknowing homeowners will say "Oh yay we can have a pool now!" But as their justification is wrong people will be misinformed and have to meet requirements that are not currently in place as they state. The development is 10 years old and most people already have fences in place. Only 2 of the 50+ houses have privacy fences.

Any recommendations? Should we seek an attorney? And no, we can't move...but if we ever do, it won't be into a development with an HOA!

Admin: please move if necessary...wasn't sure where to post. Thx!
 
We have a split rail fence that currently meets all standards for private pools. Fencing was part of the inspection before the county would sign off on our building permit and he was a stickler too so we know it meets our states standards.
 
If no one is asking you to put up a fence, then you probably don't have to do anything.

If someone says that you have to put up a fence, ask them for the basis of their request.

If there is no rule that says you need to have a fence, then they have no basis to require a fence.

If there is a rule, they have to establish that it applies to you.

If they persist, you might have to comply or fight it.

If you're good at legal things, you can probably handle it without a lawyer.

If you're not, you might want to get a lawyer.

Note that I don't have any qualifications for giving advice in this matter. I'm just giving my opinion.
 
JamesW said:
If no one is asking you to put up a fence, then you probably don't have to do anything.

If someone says that you have to put up a fence, ask them for the basis of their request.

If there is no rule that says you need to have a fence, then they have no basis to require a fence.

If there is a rule, they have to establish that it applies to you.

If they persist, you might have to comply or fight it.

If you're good at legal things, you can probably handle it without a lawyer.

If you're not, you might want to get a lawyer.

Note that I don't have any qualifications for giving advice in this matter. I'm just giving my opinion.
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+1 to all of that, especially the last line.

Is there anything in your HOA articles that state whether you are bound to future rule changes or not?
 
Donldson said:
+1 to all of that, especially the last line.

Is there anything in your HOA articles that state whether you are bound to future rule changes or not?
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We have not found anything, although we are going over it with a fine tooth comb.

I just don't understand how they could make us tear down a fence that met requirements 2 years ago but suddenly don't because they want to change the rules. Rules that apparently they don't even know since their justification is wrong... :/
 
Did the HOA approve your pool & fence before you installed it? If so, I really doubt they could come back now and say that you need a different type of fence than what you already have (and that they've already approved). If you don't have HOA approval, that's a different ballgame.

Assuming you already have approval, I would shoot an email to the HOA Board.... either the person I was friendliest with, or the ACC chair, or Prez.... and just mention the misstatement as an FYI.
 
JamesW said:
Are they asking you to do anything?

Have the provided clear justification for what they are asking?
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They have not asked us to do anything yet. Yet, is the key word there.

And no, their justification for allowing above ground pools is not clear...as it is misstated that privacy fences are already required....which they are not. Only fences are required.
 
If someone asks you to do something, they have to be specific about exactly what they are asking you to do.

They also have to provide the basis for their request in detail. Such as quoting exact rules that apply.
 

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elizardbethday said:
Did the HOA approve your pool & fence before you installed it? If so, I really doubt they could come back now and say that you need a different type of fence than what you already have (and that they've already approved). If you don't have HOA approval, that's a different ballgame.

Assuming you already have approval, I would shoot an email to the HOA Board.... either the person I was friendliest with, or the ACC chair, or Prez.... and just mention the misstatement as an FYI.
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Yes we had their approval
 
If they're not asking you to do anything, then you're probably worrying for no reason.

You're going to end up in a dispute that could have been avoided.

You're probably best just ignoring it unless they ask you to do anything.

If you have an approved fence, it's unlikely that they will ask you to replace it.

If the amendment does not change any rules for fencing, then it's probably irrelevant to your situation.

What is the exact language pertaining to the fencing requirements?
 
Send a letter to the HOA asking questions of concern.
Request that the proposed amendments be clarified and /or rewritten to have existing property improvements grandfathered in.
Unless the current or proposed bylaws have a rule stating that privacy fences are required, then you don't need to make any changes.

A vote is a vote, there usually isn't a "other" box where you can list your stipulations. All requests for changes should be brought up before you send a yes/no. Even then, the objections may be meaningless.

This is not legal advice, I just some guy on the internet. Good luck.
 
All the suggestions here are great. But they are just suggestions. Laws of each state are different in how they apply to HOA's. It's going to take some research on your part to see how the laws in your state apply to HOA's.

That being said, here's my suggestions.

poolnewbies5874 said:
Yes we had their approval
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Do you have this approval in writing?

You can ask where in the rules it presently states that a privacy fence is required. Get the specific location of said 'rule' in your HOA documents.

You can also ask if in-ground pools will be affected - and how they will be affected.

You can ask if pools that already have (written) HOA approval will be affected.

I would suggest doing this in writing and ask for a written response - which would need to include specific Rules & Regulations, CCR's , etc.

Chances are you (and subsequent owners of your property) will be grandfathered in. So the new 'rules' probably won't affect you. But ask to be sure.

Get EVERYTHING in writing and keep it with your important house papers.
 
My reply is MHO
Wife and I lived in a HOA for 34 years in a state that has some of the most strict codes around. 1st comes, can't go against (your bylaws & ccr's) state law, then county/city.

I would have to ask you a lot of other questions, but here is some guidance. Courts do not like it when HOA's don't enforce their covenants, and throw it back into the face of the HOA that is now trying to enforce a ccr.

An example in your case---Lets say there is a house that has an in ground/above ground pool in your HOA (does not make any difference whether it is above or below). As the issue is a privacy fence, lets say the ccr's state there is to be one because of the pool, and that this house does not have one. And they (HOA) did nothing. They cannot come and enforce one on you now, (to have a privacy fence), they have for some time not enforced that ccr, and the courts would render that ccr null and void, by the boards own actions. If it is a true HOA, you have to have a board of directors (BOD) that deal will the violation of the ccr's. Their own inactions, can be very damaging to the ccr's.

Now having said that---Lets say the BOD's have done everything correct through time, complying with all state/county etc laws, and bylaws/ccr's. Your HOA can pass an amendment to the ccr's that would now require a privacy fence for all pools, that's (all) pools, that would be enforceable. This would have to be passed by a general membership vote, the BOD cannot just do it.

Having said all this, your going to have to see an attorney.
 
JamesW said:
What is the exact language pertaining to the fencing requirements?
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"9.2.13. Fences. No fence of any sort may be erected unless the same is in


accordance with the Design Guidelines and until prior approval in accordance with


Section 9.2 of the Declaration has been obtained. The Declarant reserves the right to


prohibit all fences or types of fences on certain Lots. Chain link fences shall not be


permitted.


9.2.15. Pools and Spas. in-ground swimming pools shall be permitted. No


above ground swimming pools shall be permitted. All hot tubs and spas must be in-
ground or if above ground incorporated into a deck with enclosed sides. All hot tubs and


spas must be screened with a privacy fence in accordance wit the Design Guidelines."

Right now it just says hot tubs and spas must be screened with a privacy fence...it does not says swimming pools anywhere.

I would copy the exact language of their request and justification that the HOA sent out but hubby has the papers at work with him right now...
 
I can say that we have been here 10 years and we have not seen them enforce anything. They just sent out that if people do not wash the mold that is growing on the side of their houses by September that fines will be imposed. However, there are multiple other violations going on for quite awhile that they have done nothing about. (parking on street, signs in yards) Not to mention one of the members of the "Board" is not even an owner in the development....he is considered an Occupant by the terms of the covenants. I hope this doesn't turn nasty but if it does we have lots of deliquency to show on their part.
 
It says that the fence has to meet design guidelines. Do you have the design guidelines?

In any case, your fence was approved. I doubt that they could come back now and make you change it without paying for it.

I don't think that you need to worry. However, I don't have any qualifications for giving advice in this matter.
 
Yeah, sorry was gonna post design guidelines and they wouldn't copy and then I got distracted. Anyway they basically say fences must be ornamental in structure, no more than 6 feet tall, can't be in front yards or extend beyond the rear of the dwelling. Or be in open channel drainage easements...
 

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