Interpretation of Restrictive Covenants

Started by VivianA • 26 replies • 2767 views

💬 Join us to post & get advice from 50,000 HOA & Condo leaders.

⚡ Takes 30 seconds

Already a member? Log in

VivianA (Ohio)
Posts: 12

Posted:

Hello All,

The HOA board I serve on is not in agreement over the interpretation of a passage from the Restrictive Covenants.

Under Miscellaneous Structures it states:

No building, trailer, garage, storage building or structure shall be placed upon any lot for storage or other purposes and no above-ground pools shall be placed on any lot without the express written consent of the board.

Interpretation 1 – This passage states that every item mentioned requires written permission from the board.

Interpretation 2 – This passage states that only an above-ground pool requires written consent, while the other items listed are not permitted at all.

I would really appreciate your help. Thank you!

BrianB (California)
Posts: 2,820

Posted:

#2 is the most technically correct.

it may not be how the writers wanted it, but it is how they chose to word it.

and remember, they had all the words of the english language to pick and choose from, at no cost to them, no per word fee, and this is what they chose. so they must mean it, right?

CarolynL2 (Florida)
Posts: 73

Posted:

I would interpret this covenant to mean the items mentioned need the consent of the board before being placed on any lot. Covenants must be read as a whole and must be reasonably interpreted. If you own a lot and can't build on it what is the purpose of the lot?

VivianA (Ohio)
Posts: 12

Posted:

BrianB: Thank you. I agree with your answer. Grammatically, that is what it says and it also makes sense.

CarolynL2: Thank you. All homes were required to have a two-car garage already and the other structures would not be an "improvement" nor enhance property values in my opinion.

SusanW1 (Michigan)
Posts: 5,202

Posted:

No building, trailer, garage, storage building or structure shall be placed upon any lot for storage or other

and

no above-ground pools shall be placed on any lot without the express written consent of the board.

SIMPLE COMPOUND SENTENCE.

WillR (Michigan)
Posts: 68

Posted:

The courts in Michigan have ruled that the interpretation of the language of the restriction must be" the common meaning of the word" and it can not be extended. Also, that the restriction are to be interpreted as the whole instrument. Is is, and and. The #1 interpretation is one complete compound sentence as Susan states. Including the everything and pools. You may be able to search Ohio court cases on deed restrictions and see if there is a case that might help clear up the ambiguity.

BrianB (California)
Posts: 2,820

Posted:

this reg doesn't prevent a home from being built, because it is under the "misc structure" section. Typically that type of structural system for regulations means that the regs in that section only apply to that section (ie, these rules regarding building anything apply to "misc structures", whereas a home is definitely not miscellaneous.

However, your mileage may vary with this, as some legal entities like to disregard structural hierarchy and limitations of scope, in favor of using specific language for general purposes.

(an example: under "electrical requirements" may be a reg stating "only copper shall be used for new construction and repairs". Later, a regulator may say to a plumber "you have to use copper lines, because rule 107A states "only copper shall be used...". Even though it's obvious that 107A refers only to copper ELECTRICAL lines, because the rule itself doesn't say "copper electrical", only "copper", someone may try to generalize it, and claim that the rule is the rule, regardless of the section it was in. the rule says "copper only", so no PVC or cast pipes, etc. can be allowed.) It's stupid, but I deal with it occasionally in my real world job.

VivianA (Ohio)
Posts: 12

Posted:

SusanW1: This is a succinct way to explain it. Thank you.

WillR: Respectfully, would you kindly re-phrase your message so I may understand it better?

BrianB: Correct, there is another part of the RC entitled "Land Use" that speaks to the type and size of houses that may be built and as I already mentioned, that each must have a two-car garage.

VivianA (Ohio)
Posts: 12

Posted:

WillR: After re-reading your post several times, I understand that you are agreeing with SusanW1 that it is a compound sentence. I agree that it is a compound sentence. My understanding of a compound sentence is that it is two simple sentences, so interpretation #2 is correct as the sentence before and after the 'and" can each stand on their own.

VivianA (Ohio)
Posts: 12

Posted:

SusanW1: By saying this is a SIMPLE COMPOUND SENTENCE, do you agree with interpretation 1 or 2? Thank you!

SusanW1 (Michigan)
Posts: 5,202

Posted:

Gramatically, there are two distinct thoughts in that compound sentence:
1) no buildings on any lot
2) no pool without a permit.

However, the board is the entity that interprets bylaws and this one could go either way SINCE it prohibits even a shed or garage - period. Is is unreasonably restrictive? Was that the intention of the original drafters of the documents?

The board is within its rights to determine WHAT that means - for the betterment of the HOA.

Best to survey the residents and see what they want - in 2011. And re-write those restrictions to mean just that.

VivianA (Ohio)
Posts: 12

Posted:

SusanW1: Thanks for the clarification!

WillR (Michigan)
Posts: 68

Posted:

Sorry about that Vivian, I've been working on to much legal stuff! And sometime I get too wordy. But #2, is the best interpretation. If you have any doubts on a restriction and its meaning, going to your courts cases in your state regarding restriction might be helpful. I have in Michigan and learned quite a lot. For example; the court has a guideline for interpreting restrictions. If you see how they have decided on a issue then it may help and save you the cost of having an attorney give an opinion. After all its what the court decides that counts.

WillR (Michigan)
Posts: 68

Posted:

Sorry about that Vivian, I've been working on to much legal stuff! And sometime I get too wordy. But #1, is the best interpretation. If you have any doubts on a restriction and its meaning, going to your courts cases in your state regarding restriction might be helpful. I have in Michigan and learned quite a lot. For example; the court has a guideline for interpreting restrictions. If you see how they have decided on a issue then it may help and save you the cost of having an attorney give an opinion. After all its what the court decides that counts.

VivianA (Ohio)
Posts: 12

Posted:

Bless your heart, Will! I appreciate you re-wording your answer and it's very clear now. Thanks for the advice. It's good for this question and for many others as well.

I want to serve as a board member to the best of my ability and it's amazing how many "snags" can come up even if the most well-run HOA's.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Vivian:

I agree with Will ...

Interpretation 1 – This passage states that every item mentioned requires written permission from the board.

If it had been meant as only pools requiring permission from board (Interpretation 2) it would have potentially been in two different paragraphs or sections. In essence both the storage type items and above ground pools require board approval.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Vivian,

There you have it. Similar to your Association, members of this forum disagree on the interpretation.

I would recommend you do one or both of the following:

1. Contact your Association Attorney and ask for an interpretation (should be a minimal cost).

2. See how past Boards interpreted the section (did they issue written permission for anything other then pools?)

3. Pass a resolution and publish it with out documents that the Association determines the interpretation of the section to be abc based on legal opinion and/or past precedence.

4. Propose an amendment to the membership to change the wording of the document to match the Boards decision based on what they discovered doing steps 1 & 2. Thereby preventing future Boards from the need to revisit the same issue.

Tim

VivianA (Ohio)
Posts: 12

Posted:

JanetB2: Thanks for weighing in.

TimB4: Thanks for the good advice. I can't help asking, would you vote for interpretation #1 or #2?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Because you asked. I would go with interpretation #2.

Whenever you read legalese you need to break it down into sections as others have already shown you.

Tim

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Tim:

Out of curiosity as we usually agree on most items with the following bold sections would you still choose Interpretation #2?

No building, trailer, garage, storage building or structure shall be placed upon any lot for storage or other purposes and no above-ground pools shall be placed on any lot without the express written consent of the board.

VivianA (Ohio)
Posts: 12

Posted:

In my case, I never questioned the wording of this sentence, nor did I think “interpretation” was necessary. Of seven board members, five agree with #2.

We are a small subdivision composed of 62 homes. The average lot size is
95’ x 120’. Your thoughtful posts gave me reason to think about the interpretive nature of the sentence. I am still choosing #2 for the following reasons:

“No building, trailer, garage, storage building or structure shall be placed upon any lot for storage or other purposes and no above-ground pools shall be placed on any lot without the express written consent of the board.”

1) For each item mentioned:

a) Building & Trailer- there are no buildings or trailers on any lot. A “building” is defined as a roofed and walled structure built for permanent use. There is already a home on each lot. Further, the only trailer that existed was temporary. It was placed on one lot and used as an office for the building superintendent. The trailer was removed when the subdivision was built-out and that lot was sold to build another house.

b) Garage – Each house was required to have two-car garage or larger built simultaneously with the house.

c) Storage building & Structure – To the best of my knowledge, neither of these exists on any lot.

d) Above-ground pools – there are no pools on any lot.

2) The developer had their legal department prepare all of the governing documents. This sentence is a classic compound sentence. The “and” separates two independent clauses (simple sentences). Each independent clause is complete in itself and stands alone.

I have learned so much from this thread and THANK all of you for your replies.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By JanetB2 on 04/20/2011 9:24 PM
Hi Tim:

Out of curiosity as we usually agree on most items with the following bold sections would you still choose Interpretation #2?

No building, trailer, garage, storage building or structure shall be placed upon any lot for storage or other purposes and no above-ground pools shall be placed on any lot without the express written consent of the board.

Hi Janet.

It's specifically because of the one word you highlighted and that has me interpret the verbiage the way I did. As Susan pointed out, it's a simple compound sentence. They even used the word "or" in the first section which, to me, indicates that it a thought was being concluded. If you break it apart into individual statements, as one would do with any other legalize, you would get the following:

No building shall be placed upon any lot for storage or other purposes.
No trailer shall be placed upon any lot for storage or other purposes.
No storage building shall be placed upon any lot for storage or other purposes.
No structure shall be placed upon any lot for storage or other purposes.
No above-ground pools shall be placed on any lot without the express written consent of the board.

It is certainly possible that whomever wrote that section intended it to be interpreted as you did. However, just like with any law, guideline or rule, what is actually written doesn't always accomplish what is intended.

For me to interpret the section they way you did, I would have expected a sentence similar to the following [emphasis shows the changes I made along with the removal of the word "and" and the duplicate "placed on upon any lot"]:

No building, trailer, garage, storage building or structure <,>for storage or other purposes, or above-ground pools shall be placed upon any lot without the express written consent of the board.

Tim

TimB4 (Tennessee)
Posts: 21,059

Posted:

Forgot to add that due to this section being interpreted either way (depending on what an individual wanted the outcome to be) I stand by my original posting on this topic which was to look for past precedences and get a legal opinion. Then rewrite that section so a future Board doesn't have to revisit the issue.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By VivianA on 04/21/2011 5:19 AM

2) The developer had their legal department prepare all of the governing documents. This sentence is a classic compound sentence. The “and” separates two independent clauses (simple sentences). Each independent clause is complete in itself and stands alone.

I have learned so much from this thread and THANK all of you for your replies.

Vivian,

If this interpretation is the desire of the board, and is supported by past practice, I would suggest rewording the section to simplify the ability to interpret it.

Suggest the following:

No building, trailer, additional garage, storage building or structure shall be placed upon any lot for storage or other purposes. Express written consent by the Board of Directors is required prior to any above-ground pool being placed on any lot.

Tim

VivianA (Ohio)
Posts: 12

Posted:

Thank you, Tim, for the re-wording. It leaves no room for interpretation. I also really like the use of "additional garage". I *really appreciate* the time you spent responding to my question.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Vivian,

Your Welcome. In rereading this thread, I discovered an issue that may have your Board reconsider how to reword that paragraph.

If you use your interpretation and/or the suggested rewording, your Board is effectively prohibiting any structures except above ground pools from being allowed to be built/placed on a lot. This could be another interpretation of the wording and phrasing of that section.

Your current wording [emphasis added]:

No building, trailer, garage, storage building or structure shall be placed upon any lot for storage or other purposes and no above-ground pools shall be placed on any lot without the express written consent of the board.

Suggested wording [emphasis added]:

No building, trailer, additional garage, storage building or structure shall be placed upon any lot for storage or other purposes. Express written consent by the Board of Directors is required prior to any above-ground pool being placed on any lot.

Note: struc·ture - noun, verb, -tured, -tur·ing - something built or constructed, as a building, bridge, or dam. - anything composed of parts arranged together in some way dictionary.com

This can (should?) be interpreted as No decks, no sheds, no patios, perhaps no fences, no in-ground pools, etc. Basically, nothing can be added to the lot that wasn't in the initial build except an above ground pool.

Granted, it's going to an extreme. However, the wording could easily be taken that way be a disgruntled member or a strong willed board.

Is this the intent of the Board?

With this additional look I would like to my suggested rewording so it becomes more like interpretation #2.

No building, trailer, additional garage, storage building or structure may be placed upon any lot for storage or other purposes, including above-ground pools, without the express written consent by the Board of Directors.

The Board can then adopt guidelines as to what will or will not be allowed. This will allow the addition of fences, enlarging decks, etc. yet still allow other structures to be prohibited based on the guidelines.

Tim

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Tim:

I agree this section needs to potentially be rewritten in the OP’s documents to fully clarify for future references.

Interesting … if I break down to legalize I would come up with the following:

No building shall be placed upon any lot for storage or other purposes.
No trailer shall be placed upon any lot for storage or other purposes.
No garage shall be placed upon any lot for storage or other purposes.
No storage building shall be placed upon any lot for storage or other purposes.
No structure shall be placed upon any lot for storage or other purposes.
and
No above-ground pools shall be placed on any lot.
Without the express written consent of the board.

My reasoning is if it had been meant as two separate ideas or thoughts then most legal documents will separate the two into separate sentences or sections. For example:

1) No building, trailer, garage, storage building or structure shall be placed upon any lot for storage or other purposes.

2) No above-ground pools shall be placed on any lot without the express written consent of the board.

It appears to me that potentially these are documents that have not been changed or updated since developer was in control and all buildings, garages, structures, pool, etc. would have required consent of the board.

Would be interesting to see how an attorney would interpret.

🎯 You've read this entire discussion

Join the conversation with 50,000 HOA & Condo Leaders:

✓ Ask follow-up questions
✓ Share your experience
✓ Get expert advice
✓ Access 350,000 discussions

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in here