Woud this language require approval for hot tubs?

Started by BrianS17 • 14 replies • 3894 views

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BrianS17 (Wisconsin)
Posts: 6

Posted:

I am a new President and have a homeowner stating that the Architectural Control language of our Covenants does not apply to hot tubs since their hot tub is not permanent and runs on 110v. Since people are helping out, would it make any difference if it was ran on 220v (still a free-standing model though)?

Here is the language in the covenants:
3.4. Architectural Control. No building, fence, wall, swimming pool, playground structure, exterior deck or patio, kennels, basketball hoop structures or other structure or improvement of any type (including antennae of any size or shape, whether freestanding or attached to another structure) shall be commenced, erected or maintained upon any Lot, nor shall any exterior addition or improvement to or change of alteration on any Lot be made until the plans, specifications and site plan showing the nature, kind, shape, height, materials, color and location of the same described herein shall have been submitted to and approved in writing by the Architectural Control Committee in compliance with the provisions of this Declaration.

The Board has been operating under the idea that "improvement of any type" is the part that applies to hot tubs since they are considered an improvement rather than a repair for tax purposes and are listed as improvements on sales flyers all the time.

Can anyone give me some advice that might clarify if improvement of any type means an actual improvement (such as hot tub or fountain or etc) or if it is some legal language meaning something else?

LarryB13 (Arizona)
Posts: 4,099

Posted:

Brian,

I am not a lawyer but my understanding of "improvement" within the context of real estate is that it must be a permanent structure. All of the items set forth in your covenants would be improvements in that they are permanent. If the owner could drain the tub, load it on a trailer, and drive off with it then I would think it is not a permanent structure and therefore not an improvement.

I am not certain how the voltage would factor into the discussion, except that for most of us we would need to install a permanent 220-volt outlet if that was the voltage. In that case, the outlet might be considered an improvement. Also, most of the hot tubs I have seen look like they were 220-v and permanently wired in. So maybe the argument that it's 110-v and plugs into an existing outlet would be the deciding factor.

Your comment, "they are considered an improvement rather than a repair for tax purposes" leaves me wondering what kind of tax you are talking about. Could you elaborate on this?

If this owner were to place a portable ping-pong table in the same space, would that require AC approval?

Does your local building/zoning department require any sort of permit for a non-permanent hot tub?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Brian

The Board has been operating under the idea that "improvement of any type" is the part that applies to hot tubs since they are considered an improvement

I say the same. Forget the tax stuff, forget the electricity stuff, it is an improvement.

Your Covenant/Bylaw if fairly inclusive that it says most anything done outside or adjacent to the home needs approval.

DaveD3 (Michigan)
Posts: 796

Posted:

I'm with Larry on this one. I think the phrasing is rather vague, and I'm not sure I would lump a portable hot tub in as "any improvements".

The voltage seems irrelevant to me as well. I could see the outdoor 220V spa panel as an improvement, but the hot tub can be disconnected from the panel faster than it can be drained of water. Hardly permanent.

Do you have rules issued by the board around this topic?

And do you have other regulations that address appearance/landscaping? Or is everything from planting a tree to changing the color of your house/roof lumped under that one paragraph?

RwT (Florida)
Posts: 154

Posted:

We went through this in Fla.

An owner bought an elaborate stainless steel outdoor kitchen set-up ($10-$12K) completely on wheels, no fixed hook-ups for water or power, on-board propane for grill & stove.

Awesome, but not permanent thus not an improvement.

HOA backed-off before flushing money away over this.

YYMV.

* Non-Lawyer spokesperson.

JohnB26 (South Carolina)
Posts: 1,001

Posted:

The Board has been operating under the idea that ....

forget 'ideas' - what, EXACTLY, do the covenants state - if vague, unenforceable

eg.

COVENANTS AND THE COURTS

This case contained a discussion about what a covenant is and how the courts interpret them. While this is a case from NC, I have seen similar thoughts expressed in cases from other states. The text reads:

“The word covenant means a binding agreement or compact benefiting both covenanting parties. Covenants accompanying the purchase of real property are contracts which create private incorporeal rights, meaning non-possessory rights held by the seller, a third-party, or a group of people, to use or limit the use of the purchased property. Judicial enforcement of a covenant will occur as it would in an action for enforcement of any other valid contractual relationship. Thus, judicial enforcement of a restrictive covenant is appropriate at the summary judgment stage unless a material issue of fact exists as to the validity of the contract, the effect of the covenant on the unimpaired enjoyment of the estate, or the existence of a provision that is contrary to the public interest.

“While the intentions of the parties to restrictive covenants ordinarily control the construction of the covenants, such covenants are not favored by the law, and they will be strictly construed to the end that all ambiguities will be resolved in favor of the unrestrained use of land. The rule of strict construction is grounded in sound considerations of public policy: It is in the best interests of society that the free and unrestricted use and enjoyment of land be encouraged to its fullest extent.

“The law looks with disfavor upon covenants restricting the free use of property. As a consequence, the law declares that nothing can be read into a restrictive covenant enlarging its meaning beyond what its language plainly and unmistakably imports.

“Covenants restricting the use of property are to be strictly construed against limitation on use, and will not be enforced unless clear and unambiguous. This is in accord with general principles of contract law, that the terms of a contract must be sufficiently definite that a court can enforce them. Accordingly, courts will not enforce restrictive covenants that are so vague that they do not provide guidance to the court. Unless the covenants set out a specialized meaning, the language of a restrictive covenant is interpreted by using its ordinary meaning.

Wein II, LLC v. Porter, 198 N.C.App. 472, 479–80, 683 S.E.2d 707, 712–13 (2009) (emphasis added)

JohnB26 (South Carolina)
Posts: 1,001

Posted:

sorry for the underlining, I must have missed inserting an ending

RwT (Florida)
Posts: 154

Posted:

Are these detached single family homes on their own lots?

Is the tub in the back yard?

Is there a fence around hot tub area?

Has the BOD ever refused a Hot Tub?

Were you denied?

What could possibly be their reason?

I cant see a valid reason for denial of such but would expect all local ordinances must met.

* Non-Lawyer spokesperson.

BrianS17 (Wisconsin)
Posts: 6

Posted:

Quote:

Posted By RwT on 08/22/2014 7:24 AM
Are these detached single family homes on their own lots?

Is the tub in the back yard? I am the President of the HOA not the owner of the hot tub

Is there a fence around hot tub area? They have a locking cover as required by Village ordinance

Has the BOD ever refused a Hot Tub? When the developer ran the HOA (4 years) he allowed a hot tub in a read yard on a corner lot that was screened by a double row of arborvitaes. Of course as a Developer he did not turn over any documentation on this, however as a homeowner at the time, I reviewed the requests to get an idea on how I had to write mine and saw that hot tub request.

Were you denied? They were approved with stipulations, here is the complete stipulation "Hot tub needs to have a locking cover or the area that the hot tub is located needs to be secured to prevent unauthorized access and/or use. Lattice screening (or another type of screening material which would need to be approved prior to installation) needs to be installed on the sides of the hot tub (north and south) that is visible from neighbors on the left and right. Since the hot tub will be located under a deck, the lattice (or other approved screening material) color needs to match the color of the deck, the house siding, or the house trim."

What could possibly be their reason?

I cant see a valid reason for denial of such but would expect all local ordinances must met.

BrianS17 (Wisconsin)
Posts: 6

Posted:

They were approved with stipulations but after 2 months of having the approval decided to install the hot tub and now challenge the stipulations claiming over-reach and also that the covenants do not require approval for any hot tub (she is backing away from the portal bit I think).

Approved with Stipulations
Hot tub needs to have a locking cover or the area that the hot tub is located needs to be secured to prevent unauthorized access and/or use. Lattice screening (or another type of screening material which would need to be approved prior to installation) needs to be installed on the sides of the hot tub (north and south) that is visible from neighbors on the left and right. Since the hot tub will be located under a deck, the lattice (or other approved screening material) color needs to match the color of the deck, the house siding, or the house trim.

PatriciaH4 (Texas)
Posts: 42

Posted:

Quote:

Posted By BrianS17 on 08/22/2014 7:47 AM
They were approved with stipulations but after 2 months of having the approval decided to install the hot tub and now challenge the stipulations claiming over-reach and also that the covenants do not require approval for any hot tub (she is backing away from the portal bit I think).

Approved with Stipulations
Hot tub needs to have a locking cover or the area that the hot tub is located needs to be secured to prevent unauthorized access and/or use. Lattice screening (or another type of screening material which would need to be approved prior to installation) needs to be installed on the sides of the hot tub (north and south) that is visible from neighbors on the left and right. Since the hot tub will be located under a deck, the lattice (or other approved screening material) color needs to match the color of the deck, the house siding, or the house trim.

Would a swimming pool require the same stipulations? I can't understand why a hot tub would need to be screened more than a swimming pool?

BrianS17 (Wisconsin)
Posts: 6

Posted:

Quote:

Posted By LarryB13 on 08/21/2014 10:46 PM
Brian,

I am not a lawyer but my understanding of "improvement" within the context of real estate is that it must be a permanent structure. All of the items set forth in your covenants would be improvements in that they are permanent. If the owner could drain the tub, load it on a trailer, and drive off with it then I would think it is not a permanent structure and therefore not an improvement.

I am not certain how the voltage would factor into the discussion, except that for most of us we would need to install a permanent 220-volt outlet if that was the voltage. In that case, the outlet might be considered an improvement. Also, most of the hot tubs I have seen look like they were 220-v and permanently wired in. So maybe the argument that it's 110-v and plugs into an existing outlet would be the deciding factor.

Your comment, "they are considered an improvement rather than a repair for tax purposes" leaves me wondering what kind of tax you are talking about. Could you elaborate on this?

If this owner were to place a portable ping-pong table in the same space, would that require AC approval?

Does your local building/zoning department require any sort of permit for a non-permanent hot tub?

Some very good points LarryB13. I am assuming since they represent it as a simple plug-in that makes it non-permanent. Several years ago HotSprings Sovereign model was available as a 110v, so they may be correct that it is a simple plug-in model (their's is older when asked they could not or would not tell me the year of the hot tub).

LarryB13, in your opinion, would a hot tub that the instruction manual stated "220 volt permanently connected models" still be non-permanent (just checking so I can inform our Board of why this particular hot tub is different and that we can still apply our stipulations of screening on other direct connected hot tubs).

The tax purpose that I am talking about is how repairs vs improvements are handled for depreciation. Hot tubs are considered improvements to a property rather then a repair (even if you are replacing an existing hot tub).

BrianS17 (Wisconsin)
Posts: 6

Posted:

Quote:

Posted By PatriciaH4 on 08/22/2014 8:59 AM

Would a swimming pool require the same stipulations? I can't understand why a hot tub would need to be screened more than a swimming pool?

Per covenants:
No aboveground swimming pool shall be permitted on any Lot at any time. An aboveground pool shall mean a pool on which the vertical sides thereof extend above the grade of the Lot in question.

I would assume that and in-ground pool would require upon under 3.4 stated above as improvement and the Architectural Control Committee would review it and may require some kind of screening since they do with hot tubs.

I think what I am learning is that because this one particular hot tub is a plug-in model it may not be considered an improvement since it easily moved. I start wondering if a neighbor will try to be a huge ugly fountain in their front yard and the HOA can not stop it since it just a plug-in model.

BrianS17 (Wisconsin)
Posts: 6

Posted:

Quote:

Posted By DaveD3 on 08/22/2014 4:04 AM
I'm with Larry on this one. I think the phrasing is rather vague, and I'm not sure I would lump a portable hot tub in as "any improvements".

The voltage seems irrelevant to me as well. I could see the outdoor 220V spa panel as an improvement, but the hot tub can be disconnected from the panel faster than it can be drained of water. Hardly permanent.

Do you have rules issued by the board around this topic?

And do you have other regulations that address appearance/landscaping? Or is everything from planting a tree to changing the color of your house/roof lumped under that one paragraph?

DaveD3, I appreciate your feedback. Wondering if you are saying that any and all hot tubs no matter how they are connected or installed are portable unless literally built on-site and into the ground? Since our covenants expressly state playground equipment and those tend to move much more often around our neighborhood, what is your thoughts on those and hot tubs in their context? In the past, basketball hoops (even the portable ones with concrete blocks holding them down) were required to be approved. What is your opinion on the portable type of those in reference to the covenants stating "basketball hoop structures"?

JohnB26 (South Carolina)
Posts: 1,001

Posted:

portable:

plugs into receptacle

fills with garden hose and drains by 'pulling the plug'

http://cdn.sneakhype.com/wp-content/uploads/2014/05/mspa-portable-hot-tub-2-1024x908.jpg

non portable:

'hard wired' (regardless of voltage)

fills with attached plumbing piping and/or drains into fixed plumbing

http://2.bp.blogspot.com/-kfMJVcRWR8k/UK-y-KO17JI/AAAAAAAAAL0/EqUV72COIXo/s1600/Hot+Tub+nice.jpg

there are MANY 'in-betweens'

ps. what is the big fuss? they have and you don't? live and LET LIVE!

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