Question regarding Enforcement

Started by AndyF2 • 14 replies • 4269 views

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AndyF2 (Michigan)
Posts: 4

Posted:

Hello,
This is my first post, and I appreciate any feedback given. I apologize in advance if the explanation is considered too lengthy.

I have a situation regarding a basketball pole on my property that I would like clarification about. My main objective my is to be a neighbor who is easy to get along with, but to ensure enforcement of rules is fair and consistent.

Our by-laws state:

"playground equipment such as swing sets, slides and the like shall be kept in the side or back yards of all Units"

An anonymous complaint came into our current president, who asked me if I would remove it. I am certain it is anonymous as he actually showed me the letter.

The reasons stated were
A) It is playground equipment
B) It forces the kids to play in the street, which is dangerous (I have 2 girls, 6mo and 3. I use the pole, not kids)

Since I have lived in this development, I have seen 15 of the 49 homes install basketball hoops and/or poles in the front yard. Some are permanent, some portable. Some in turnarounds, one mounted on the garage. Perhaps wrongly, I never thought twice about it and didn't consider a pole to be playground equipment based on the above examples.

I purchased a portable basketball pole 3 or 4 years ago. As my short driveway is sloped, this year I moved it down on the grass near the street. I reasoned that I live in the very back of the development, and only one neighbor actually has to drive by me, who has no issues with it, so shooting hoops would not interfere with normal use of the road.

In addition, for years I've dodged kids and adults playing in the street (street hockey, playing with dogs, etc...) and had no problem with it, based on the relaxed nature of the development, including the 15mph speed limit throughout.

I told the President, (who is quite reasonable) that if we as an HOA wanted to classify basketball poles in that way, we should consider clarifying in the by-laws, BUT if they sent out a notice to the other homeowners to remove poles, I would remove mine immediately. I also stated that if we wanted to vote a provision that there should be no street play of any kind, I would immediately comply.

I then shared with him the many obvious violations in our development, based on by-laws
1) Outbuildings far in excess of regulated sizes and not in proper design accordance
2) Trailers, campers, boats, etc...stored in front yards, and/or not screened
3) Wooden fences installed in several homes when only chain link is indicated
4) 80% of the development storing trash containers in the drive-ways instead of in the house.
5) Unauthorized satellite and other attachments on many homes
6) Operating a business from home. (One home daycare, one former president selling golf carts)

This includes 3 violations on his (the presidents) property (trailer, satellite, trash) and 4 on the neighbor across the street.

Frankly, enforcement is poor, most people don't want to serve on the board, and I follow all the by-laws as I understand them. I believe over 2/3 of the development has one or more front yard violations as it currently stands.

So, finally the questions
1) Can I be required to remove this pole
2) Should the by-laws be amended before the pole is classified playground equipment and enforced
3) Is there legal problems associated with enforcement of any one by-law given neglect to enforce the rest? My advice was to amend the by-laws to only what is enforceable
4) Can by-laws amendments be made retroactive. (i.e, those with permanent poles be forced to dig them up?)

Thanks!

Andy

LawrenceC1 (Georgia)
Posts: 480

Posted:

Quote:

Posted By AndyF2 on 08/05/2012 6:27 AM

1) Can I be required to remove this pole
2) Should the by-laws be amended before the pole is classified playground equipment and enforced
3) Is there legal problems associated with enforcement of any one by-law given neglect to enforce the rest? My advice was to amend the by-laws to only what is enforceable
4) Can by-laws amendments be made retroactive.

Andy,

Welcome to the forum! I hope that you find the answers that you are seeking.

Here is my take on your questions, based on my experience and understanding of your situation:

1) Yes. You seem to be in violation of your CC&Rs, in my opinion.

2) No. The restrictions on playground equipment are sufficient to take action. However, you may want to modify your CC&Rs (not bylaws) to be more explicit.

3) Yes. It's called selective enforcement and you can read about it here. However, selective enforcement of playground equipment does not have anything to do with enforcement of other provisions (trailers, campers, boats, fences, trash, satellite dishes**, home-based businesses, etc.)

4) Yes, maybe. Any change properly enacted can be enforced on everyone retroactively, however in fairness, new rules can be written to include a grandfather clause that allows existing violations to stand.

(**BTW, satellite dishes generally cannot be controlled by the CC&Rs of an HOA.)

TimB4 (Tennessee)
Posts: 21,062

Posted:

Hi Andy,

Welcome to the forum. I am not sure that you will like my comments but this is the way I see it.

If you are in violation, then you are in violation. Similar to receiving a speeding ticket, just because others are speeding, that doesn't excuse the fact that you were - hence, just because others are in violation doesn't excuse the fact that you are in violation.

Quote:

Posted By AndyF2 on 08/05/2012 6:27 AM

I then shared with him the many obvious violations in our development, based on by-laws
1) Outbuildings far in excess of regulated sizes and not in proper design accordance
2) Trailers, campers, boats, etc...stored in front yards, and/or not screened
3) Wooden fences installed in several homes when only chain link is indicated
4) 80% of the development storing trash containers in the drive-ways instead of in the house.
5) Unauthorized satellite and other attachments on many homes
6) Operating a business from home. (One home daycare, one former president selling golf carts)

1 - Guidelines are different than Covenants. Guidelines are a basis to approve or disapprove a request. If the individuals with the sheds requested permission and received it, they would not be in violation.

2 - I expect this is in the CC&Rs and likely is a violation. However, the Association isn't required to enforce all violations. Similar to individual members they have the right to enforce but are not required to enforce. If the Association is not enforcing a violation then a member can exercise their right and enforce the violation by taking the violator to court.

3 - Is this a guideline or something in the CC&Rs?

4 - Yep this is a pain to enforce and difficult to do unless the Association has an automatic fining policy in place (say $50 for each violation). My Association has the same issue and has chosen to approach the issue with caution.

5 - Irregardless of what your governing documents say - Federal Law allows the Satellite dishes without HOA approval.

6 - State laws may be in play here that trumps the governing documents.

div class="NTForums_Quote">Posted By AndyF2 on 08/05/2012 6:27 AM

Frankly, enforcement is poor, most people don't want to serve on the board, and I follow all the by-laws as I understand them. I believe over 2/3 of the development has one or more front yard violations as it currently stands.

Yep, when membership apathy sets in then those who want to serve will be the ones to serve. If membership involvement is poor, you may actually get a board that goes nuts on enforcement of all violations and then the membership becomes unhappy and sells or stages a revolt and starts to become involved (I've been through this issue).

div class="NTForums_Quote">Posted By AndyF2 on 08/05/2012 6:27 AM

So, finally the questions
1) Can I be required to remove this pole
2) Should the by-laws be amended before the pole is classified playground equipment and enforced
3) Is there legal problems associated with enforcement of any one by-law given neglect to enforce the rest? My advice was to amend the by-laws to only what is enforceable
4) Can by-laws amendments be made retroactive. (i.e, those with permanent poles be forced to dig them up?)

1 - Yes.

2 - If there are grey areas it's always good for the Association to better define them.

3 - Perhaps. Typically if an Association enforces one (say playground equipment) they should enforce that one issue on all properties or they risk losing the issue in court due to selective enforcement. Of course, similar to my speeding ticket analogy - the court may still rule for the Association and just instruct the Association to start enforcing the rule on the other examples of the same violation brought to court. Either way, the member and Association will be out a lot of money paying the legal bills and court costs to have a judge rule.

Again, the Association, just like a member, isn't required to enforce the rules, they just have the right to do so.

4 - A change in the rules may grandfather the past, but not always. It depends on the language used to change the rules. Currently, if the Board declared that the sporting equipment is the same as playground equipment then this would apply to all - as it's likely those with cemented poles who did not receive prior permission from the Association. However, if they did receive permission - they would be protected.

My advice, since you had no problems before you moved the pole to move it back where it was or transport it back and forth when you want to play in the street.

I would also suggest that you become involved with the running of the Association. This is good for everyone and you will be able to be part of the decision process to change things.

Hope this helps,

Tim

LawrenceC1 (Georgia)
Posts: 480

Posted:

Tim,

I know I'm more likely to be right about something when you agree with me. :-) Your advice is always carefully considered and well thought through.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Andy

Generally using other violations to excuse ones own violation is rubbing the BOD's nose in it and will usually not get very far. In many cases it will pi$$ them off and they will come after you harder.

I have a friend that lives in an HOA where only portable basketball nets are allowed. Rules and Regulations say they are to be removed/put away when not in use. One person installed a permannet one and argued that people never put their portable ones away (which was true) so it was no different. The HOA came down on him in heartbeat.

Concentrate on your specific issues and beliefs. Work to get changes made. Become pro-active, not reactive. Become part of the HOA leadership where changes can be made.

Hope this helps.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

I had to deal with this issue first hand. We had an owner that had a somewhat portable basketball goal in their driveway. All was good and no body complained for years. I even played on it a few times myself. The location was on a corner lot and visible to cars going BOTH directions. However, the kid across the street got on a basketball team that was competition of the kid with the goal. The parents then demanded they be allowed to install a separate goal for their kid or remove the other. There was NO safe place for these parents to install a goal. They were in a direct blindspot and a complete danger to everyone. It was pretty obvious installing a goal would kill or hurt someone. So had to deny their request.

This then meant I had to remove the other basketball goal. Which was really kind of stupid in my opinion as everyone had always shared that goal. We did have a basketball goal in our common area but it was over ground not pavement. It was nearly impossible to bounce the ball there. Luckily, the owner gave the HOA their goal. I then moved it to the common area across from the existing goal. Made a small basketball court out of it. Which no one played on...

My opinion on this is that it really is NOT selective enforcement to allow one to have a goal IF it is allowed. Yours is NOT allowed according to the rules and must be in the backyard. It should be moved. However, I can't say the other goals are against the rules or not being taken action against either. It is all in the location of these goals. I don't feel they are safe to have near the road. They put ALL the owner's liability at risk if something were to happen. Considering if someone sued because their kid or car was damaged, ALL the HOA members would be on the line to pay the bill.

Be an example and move the goal. Maybe the others are protesting and being fined. You don't know. Just handle your goal and let the other fall where they may.

Former HOA President

AndyF2 (Michigan)
Posts: 4

Posted:

Hello Again,

I am sincerely impressed with the speed and thoroughness of responses. I appreciate the objectiveness. Thank you

I would like to clarify that I did not set out to violate a rule based on others doing it. I believe based on the limited description and examples, I, and other homeowners truly believed basketball poles were not indicated. Considering members of the board, neighbors in my vicinity (it's a small development) have told me they don't have a problem with it (after the fact), I literally thought I was in good standing.

Strangely enough, the President told me his kids play in the street, he likes that our speed limit and visibility makes that safe, and that he will be putting up a basketball pole himself. He said he literally has no problems with it, nor does the board, but the complaint received puts an obligation on them, which I understand. That said, he confirmed that none of the other homeowners with poles, who I mostly know personally, received permission, or have been asked to take theirs down, or are protesting. Kind of strange.

Lawrence,
Thanks for the link on selective enforcement. I read it, and it was quite helpful. I appreciate the distinction between selectively enforcing one rule, versus the plethora of various rules

TimB4,
Absolutely NO issues liking your comments or not. I was just looking for objectivity. Thank you very much. To answer some of your queries, all the issues I pointed out (1-6) were in the CC&R, including the bit about shed sizes, etc...

John C,
Proactive vs. Reactive. Good advice. Funny, literally moments prior to checking back, I have been working through an ethics course and I just finished this topic.

My overarching concern is NOT having a basketball pole there. You know, "as far as it be with you, be at peace with all men." My intention has always been to put an approved court in the backyard in the future. Having it on my sloping driveway like other neighbors caused it to tip over twice, once wrecking my windshield, and once tearing the steering wheel off my lawnmower. I thought I did a reasonable action based on my own misinterpretation of the rules, and what I witnessed being done elsewhere. When in Rome...

My main goal was consistency.

Looks like the pole will come down

Thanks all.

KevinK7 (Florida)
Posts: 1,343

Posted:

IMO opinion, I don't think a basketball pole would classify as "playground equipment," but then again, it is all in the interpretation. When I think of play ground equipment, I think of see-saws, swings, and slides - not basketball poles for grown men. Would they have a problem with sport equipment in the yard like a bocce ball or croquet? Would that be playground equipment?

One question - are the streets public or private, because if they were public streets, I don't see how the HOA could enforce something, such as no poles because children would play in the street, when they don't own the street.

AndyF2 (Michigan)
Posts: 4

Posted:

Hello Kevin,

It's a private road. Everyone plays in the street, walks dogs and bikes down the middle of the road, etc... and there is nothing written against it, thus the 15mph speed limit. It's pretty accepted, I've never even heard it complained of, or brought up in our meetings

If I wanted to be a real jerk, I could take down the pole to avoid arguments, then practice ball-handling and passing exercises with the neighbors in the middle of the road. That's not me though...

Andy

KellyM3 (North Carolina)
Posts: 2,239

Posted:

Andy,

My thinking as a president of an HOA is that once the complaint is lodged, your board is required to enforce the regulation on all properties covered by the HOA policy. To be sure, no poles should go up in drives but they have. The board should've enforced the pole requirements at the first instance, but didn't. Residents theoretically know they operate under HOA rules by ignored the rule. The HOA has the burden of not selectively enforcing the rule so you have some leverage. The board will not be able to prove it granted waivers to all properties that are out of compliance.

Temporary basketball goals - I don't see how they're in violation. They're detached "toys" but shouldn't be left out on the street when not in use.

This seems aesthetics more than safety oriented.

____________________________________

Regarding other violations to compare w/ your basketball pole, don't do it. The issue is the pole and the kids playing in the streets, which comes with having a robust, healthy neighborhood.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Andy,

You mentioned that the restriction on playground equipment is in the bylaws. Is there a restriction also in the CC&R's?

This is an important distinction because the Declaration of Covenants, Conditions, and Restrictions govern what you may and may not put on your property. The bylaws are the rules of how the association shall operate. I can steer you to an Arizona court decision that holds that an association cannot create property restrictions by enacting or amending its bylaws.

AndyF2 (Michigan)
Posts: 4

Posted:

Hello Larry,

Forgive my ignorance but initially I thought the covenants and the bylaws were the same thing. What I described is listed in the bylaws.

In fact, of all the materials I have since the home was built, there isn't anything formally titled as a Declaration of Covenants, Conditions & Restrictions.

Everything I received related to this matter was in the Purchaser Information Booklet from 8 years ago.

Hi Kelly,

Thanks for the insight. That is the root of my initial interpretation. I didn't view the pole as a playground unit or similar. For what it's worth, the pole itself is never on the street, nor does it overhang the street, even when in use.

Enjoy your Sunday

Andy

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By AndyF2 on 08/05/2012 11:15 AM
Forgive my ignorance but initially I thought the covenants and the bylaws were the same thing. What I described is listed in the bylaws.

In fact, of all the materials I have since the home was built, there isn't anything formally titled as a Declaration of Covenants, Conditions & Restrictions.

Everything I received related to this matter was in the Purchaser Information Booklet from 8 years ago.

One problem on this forum is that there is a lot of variance from state to state as to what things are called and how they are recorded. There are generally three or four sets of documents that effect you and the HOA.

The first is a set of restrictions on the property itself. Your deed should state somewhere that the property is subject to the restrictions or conditions recorded in book xxx, page xxx in the records of whoever records deeds in your locality. Exact wording varies a bit from place to place. The restrictions nearly always must be recorded before any lots are sold. Restrictions usually have some provision for amending them but often require more than a simple majority of homeowners to approve.

The restrictions will usually state somewhere within them that there is an association called the XYZ Homeowners Association and that by purchasing property subject to the restrictions that you automatically become a mandatory member of the association.

Most associations are incorporated as a non-profit. Your state government has an agency that regulates corporations and the developer should have filed Articles of Incorporation for the association. Depending on the requirements of your state, the Articles may be very simple or very detailed. The Articles are usually public record and available to anyone who wants to see them. As a bare mimimum, the Articles will identify the name of the association, who the incorporators were, and who the initial directors are. Some states seem to require more information such as the number of members on the board, their terms, and/or how and when members may vote.

The restrictions usually give the developer control over the association until he has sold most or all the lots. They usually do this by giving themselves lots of votes for each lot they own while buyers get only one vote for their lots.

The association will normally adopt bylaws, which are supposed to set forth the rules by which the association will operate. Bylaws should establish things such as who may vote, the number of directors, their terms, how officers are selected. Bylaws may or may not be recorded, depending on state law. Depending on how they were written, bylaws may be changed by the board of directors or by a vote of the members. They are usually easier to amend than the restrictions.

In an earlier reply in this thread I alluded to the misuse of corporate bylaws to impose additional restrictions on the property. This seems to be a widespread practice and you may have little defense against this.

Your association may also adopt rules and regulations for the use of common areas owned by the association.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Quote:

Posted By LawrenceC1 on 08/05/2012 7:22 AM
Tim,

I know I'm more likely to be right about something when you agree with me. :-) Your advice is always carefully considered and well thought through.

We were both typing a response at the same time. I didn't see your reply until after mine posted.
Short and to the point(vs verbose) tends to win out in the posting wars

TimB4 (Tennessee)
Posts: 21,062

Posted:

Andy,

The other option is to temporally remove the hoop.
Then request permission from the HOA (have the neighbors on the block sign a form that they have no problem with it). If the Association approves it, then the Board can simply respond that you are not in violation but received a waiver based on support from the neighbors.

OR

The board could simply respond that "this Board of Directors does not see a problem with this specific hoop being where it is. If you disagree with this decision you are welcome to submit your name for nomination to the board and, if elected you would be part of the decision process deciding these issues."

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