Legal Use of 'Harmony' to deny Request

for me, a key question is do you have a covenant requiring "harmony"? In ours, for example, we have a small line that says something similar to "in a manner similar to the general appearance of the neighborhood". We have used that a time or two to deny some paint scheme or outdoor feature, or get someone to comply with trash clean up, yard design, etc..

If you have something, then you stand a better chance of enforcing a harmony decision. If you don't, then I would be the first to defy the HOA directive, based on the "THere was nothing in my contract that stated I needed to be in harmony with the neighborhood design" arguement.

Jim, since all existing tanks are buried and if the ACC decides an above ground tank would depreciate property values in the association there is a basis to not approve the request. Also, the cost to buy is probably less than the cost to screen.

Thank you for your insigthful comments.

I reread the covenants agin (100th time!) and we do have a clause in our architectural review section that states that 'harmony' will be a consideration in approving any structure or addtion to any lot. it laso states that each lot owner acknowledges that the Association has the authority, in a good faith effort to deny structures, additions, etc.

Based on your comments, I do believe we would be on solid ground to deny, since all the others are buried. Also the cost for a lotowner to buy the tank would be far more than the cost of fuel they would consume in a year. Add on ot that the cost to 'hide' the tank if we madt that a stipulation.

I will also confer with our attorney, and will send out a questionaire later this year to get residents' input on this and some other issues that have surfaced since we amended our covenants last year.Not a fun project!

Thanks again, most helpful

UNIFORMITY uber alles!! Boy, that's right out of a George Orwell novel. Or is is out of a Fascist Manifesto?

The subject of interpretation of restrictive covenants does have discipline. However, the interpretation depends upon the precise wording in the CC&Rs (generalizations don't work), any applicable state law, and the applicable case law. I am not an attorney but I have read many opinions by the Court of Appeals. The message is clear in Michigan.

Perhaps it is easiest to work backwards by starting with the applicable case law. Each state may be different, but there are similarities among the states. In Michigan the rules for interpretation are repeated in almost every case that goes to the Court of Appeals or Supreme Court. At this time, those rules are:

“Restrictive covenants are to be read as a whole to give effect to the ascertainable intent of the drafter, and strictly construed against grantors and the parties seeking to enforce the covenants.  All doubts are to be resolved in favor of the free use of property.  Courts should not infer restrictions that are not expressly provided for in the controlling documents."  (Case citations eliminated)

I write "at this time" because a new case may add to the case law as it did in Michigan recently with the addition of "to be read as a whole". To correctly interpret the CC&Rs, the case law for your state is the place to begin. You may not find much statutory law since property law seems to be grounded in common law.

The language above is very interesting. If a use of the property is not strictly prohibited, then that use is authorized. The language also prevents an ACR Cmte from taking the "inch" in the CC&Rs and stretching it to a "mile". Many of the posts on this website are about the excesses of ACR Cmtes. So if the CC&R's do not specifically prohibit above-ground propane tanks and you believe they should, then the proper action is to seek an amendment to the CC&Rs.

Thanks again to all who gave me their insight. (except LuciusD, whom I am glad to report doesnt't live in my coummunity! Harmony doesn't only apply to tangible, physical structures but also to how the residents interact. A Positive, constructive and professional exchange of ideas is paramount. I pity his HOA)

At any rate, everyone makes some very good points. Harmony and rhythm have been upheld in some DE court cases from what a resident/builder/council member has related to me. The last thing we desire is to stifle residents' inventiveness to beautify and upgrade their homes. Hence we have historically sent out questionaires and consulted with our attorney to ensure our decisions reflect the majority perspective and are legally valid. I am meeitng with our attorney this week to get his take and to verify the harmony issue as it is described in our CC&Rs.

This is a very helpful forum.

RonaldW raises some very good points. CC&Rs have to be a live document that is periodically updated to reflect changing conditions to prevent "their slide to "slum" status". The same is true with ordinances in a village or municipality. Times change. Ordinances concerning wind turbine generators are added. Others are changed.

My personal view is that each owners association should have a committee elected by the members (separation of powers is important) to provide that important legislative function by bringing the legislative issues annually before the members for decision by the members. Only the members should be able to approve amendments to the governing documents.

Most community associations will have the default requirements in the ordinances of their municipality as a backstop.