Is a swimming pool a structure?

Started by BabetteM • 20 replies • 4352 views

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BabetteM (Hawaii)
Posts: 12

Posted:

Our CC&Rs (we are in Hawaii) state that each lot can have no improvement except a single-family dwelling and such outbuildings as are usually accessory thereto. They go on to state that no garage or shed shall be built before a dwelling is built on a lot. "improvements are defined as building, outbuildings, roads, driveways, parking areas, fences, retaining walls and other walls, hedges, poles, antennae, and any other structure of any type or kind.

We have a property owner who owns lot 161 and his daughter owns the adjacent lot 162. Lot 161 has a house on it and that property owner wants to install a swimming pool on lot 162. The plans are a bit vague, but I believe that it is an in-ground pool, surrounded by a short wall with a wrought iron fence on top.

There is some dissension among our Architectural Committee as to whether or not a swimming pool is a structure and therefore whether or not it can be built on a vacant lot where it is not accessory to a dwelling. To me, it would be a structure if it were an above-ground pool, but not if it were in the ground. Obviously this does not fall into the strict reading of our CC&Rs, which only address garages and sheds. And there is also some disagreement about whether we could allow the building of a wall with a fence on top since that could also appear to be a structure.

I would really appreciate hearing from anyone who has been through this. I'm fine with giving the applicant a variance since we're talking pool and not a garage or shed, but I don't think the rest of the Committee agrees with me.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Tough question but good one. I would have to say a pool is a structure whether it is below ground or above ground. An in-ground pool will collapse if it does NOT continously hold water in it. It has to be just as structurally sound as anything else built.

As for allowing pools to be built that is a complicated question. Will this be on any "Common area" of the HOA? Do the owners own the house and the lot the house sits on but all outside areas are considered "Common"? That is the major factor to consider. If your HOA provides lawncare that is a good lithmus test to decide what qualifies as common area.

There are other things to consider when building a pool besides just building the pool. Liability, insurance, and rules of safety. I know that many pools have to be fenced in and the pool a certain height. With the pool installation do you also have rules on fence installation as well?

Just need some more details to feel comfortable with giving the right advice.

Former HOA President

JohnC46 (South Carolina)
Posts: 14,265

Posted:

I say anything "built" on a lot is a structure be it above, in or below the ground.

TimB4 (Tennessee)
Posts: 21,062

Posted:

I agree with John, it's a structure.
However, I also believe that if it's not prohibited then the Association should allow it to happen.

RayM6 (Virginia)
Posts: 40

Posted:

I agree it is a structure. I assume that the recorded owner of lot 162 is the accountable applicant/person the BOD is dealing with though, not the owner of the adjoining lot? Looks like different (although related) people own them?

CarolF (Florida)
Posts: 435

Posted:

I seem to remember an issue some years back of a tennis court being built by a relative on a separate lot next to a family member's house. It was all fine, until the house owner wanted to sell, and they couldn't find an buyer who wanted both the house and the tennis court (2 lots, 2 tax assessments, 2 HOA assessments, etc.)The house sold, and the tennis court relative was left with just the tennis court. Does anyone else remember this case?
It does point up some potential issues with this kind of arrangement.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Carol,
I don't remember reading about that but it is an excellent point.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

It was all fine, until the house owner wanted to sell, and they couldn't find an buyer who wanted both the house and the tennis court (2 lots, 2 tax assessments, 2 HOA assessments, etc.),

Good point Carol. Let us not forget the double everything especially the HOA dues.

I can see it now and quite common. The father buys the daughter's lot and says well it is only one HOA lot so only one HOA lot dues.

BrianB (California)
Posts: 2,820

Posted:

Think of it this way... if I build an underground parking garage, is that a structure or not?

I think most people would call it a structure...

alternate way to look at it... does the pool have concrete walls? Does it utilize Rebar in the walls? If so, it's likely a structure, for why else engineer structural support, if not to support some structure.

RayM6 (Virginia)
Posts: 40

Posted:

Come to think of it - do the CCR's prohibit building a structure other than a conforming dwelling on an undeveloped lot?

CarolR11 (Colorado)
Posts: 2,563

Posted:

Form her OP

CarolR11 (Colorado)
Posts: 2,563

Posted:

In her OP, Babette states that their docs don't permit any "improvements" except homes. I agree with those who say that a pool is a "structure." The Board probably could grant a variance, but as others have posted tht may lead to problems down the road.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

If it needs a building permit, its a structure.

BabetteM (Hawaii)
Posts: 12

Posted:

Interesting responses, thanks all.

Yes, these are two privately owned lots, no common areas. Father owns one lot, daughter owns the other. Application for construction on the daughter's lot must be signed by the daughter although father has made initial contact. They have attempted control of future sales by giving each other the first right of refusal to purchase, but if the father doesn't buy the daughter's lot in the future then it could be sold to someone else. They are placing the pool on the daughter's lot in such a way that there is still ample room to build a house in the future.

The pool does need a permit from the local jurisdiction. They are planning to put in electricity and heat and will surround all with a low wall and fence for safety.

The CC&Rs are a little conflicting, in my mind. The CC&Rs state that no improvement is permitted on a lot except a single-family dwelling and buildings accessory thereto. Further down it states that you can't build a garage or shed before a dwelling is built. So, I assume that the writers of the CC&Rs didn't anticipate that someone would choose to build a pool before building a house on their lot. So our Committee could choose to interpret this to mean that other accessory buildings in addition to garages and sheds cannot be built before a dwelling is built on the same lot. OR, we could decide to grant a variance based on the fact that the CC&Rs are a little vague and a swimming pool doesn't meet the intent of the CC&Rs.

BTW, if one person owns both lots, they are still two lots until the property owner goes to the local jurisdiction and requests a lot consolidation.

GlenL (Ohio)
Posts: 5,491

Posted:

Babette this really is a question for your HOA attorney and one of the first questions I would ask would be if the BOD actually has the power to grant a variance. While a lot of BOD's think that they have to power to do this or that, in reality they are just as bound by the CC&Rs as the homeowners and only have the power granted by the CC&Rs or applicable law. You need to make sure all of the t's are crossed and the i's dotted on this or as laid back as Hawaii is supposed to be, you might find the neighbors enforcing the CC&R's in court with the HOA and the Board stuck in the middle.

While you are at it, if your documents are silent about combining lots and a lot are, you might ask the attorney if something done at the county level would affect how the HOA apportions assessments. For instance if you need to raise X amount per year and you have 200 lots the result is Y but if you suddenly have 199 lots the result is Z. Not much difference but in reality the neighbors are in effect paying most of the assessment of the double lot which could lead to a lot of friction. But remember if you continue to assess for two lots that means they also get two votes, one for each lot.

If your CC&R's don't have minimum Sq Ft for a structure, it might be better to require a small "pool house" be built before the pool.

Studies show that 5 out of 4 people have problems with fractions

ValerieS2 (Michigan)
Posts: 244

Posted:

I agree that if it is not specifically prohibited then it is most likely allowed. Most cities and townships have strict permit requirements when it comes to pools. I would say make sure the required permits are pulled - in Michigan they are electrical and building. Somejurisdictions require plumbing and mechanical permits as well.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

As Glen said:

While you are at it, if your documents are silent about combining lots and a lot are, you might ask the attorney if something done at the county level would affect how the HOA apportions assessments. For instance if you need to raise X amount per year and you have 200 lots the result is Y but if you suddenly have 199 lots the result is Z. Not much difference but in reality the neighbors are in effect paying most of the assessment of the double lot which could lead to a lot of friction. But remember if you continue to assess for two lots that means they also get two votes, one for each lot.

I can see them trying to do such.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

It's a structure.

GlenL (Ohio)
Posts: 5,491

Posted:

Quote:

Posted By BabetteM on 01/24/2013 11:56 AM
Our CC&Rs (we are in Hawaii) state that each lot can have no improvement except a single-family dwelling and such outbuildings as are usually accessory thereto. They go on to state that no garage or shed shall be built before a dwelling is built on a lot. "improvements are defined as building, outbuildings, roads, driveways, parking areas, fences, retaining walls and other walls, hedges, poles, antennae, and any other structure of any type or kind.

Babette rereading your original post if the CC&R's do not list a pool as an improvement it would probably be allowed HOWEVER the fly in the ointment would be the wall or fence around the pool which are required by law but clearly prohibited without a dwelling.

Studies show that 5 out of 4 people have problems with fractions

ValerieS2 (Michigan)
Posts: 244

Posted:

"HOWEVER the fly in the ointment would be the wall or fence around the pool which are required by law but clearly prohibited without a dwelling."

And this would be an instance where local law supercedes HOA guidelines.

CarolR11 (Colorado)
Posts: 2,563

Posted:

It seems to me that the phrase "and any other structure of any type or kind" would exclude a swimming pool.

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