What would you do?

In my last HOA sheds were banned but children's play houses were allowed. I got the impression that the structure being talked about was more a "little" house then a childs playhouse and as such, I would probably be against it.

I would have to see the plans.

Grant the request on a TEMPORARY basis.

Have BOD and member/owner sign document specifying structure will be removed after either:

recovery

2 years time

death.

? post a bond to ensure removal ?

SIMPLE

Agreed JohnB, and that HOA couldn't think of that, DOH!

Amen. My heart goes out to that family and yours Jerry nothing worse than seeing a child suffer.

Melissa, They did reverse and grant approval for the structure..........after they were shamed into it!

I would not simply allow erection of "anything" even based on an ill child's request.

I agree in a temporary waiver.

However, the above statement is, I believe, poor. The excuse/reasoning for denial is plain and simple - the terms of the contract (CC&Rs). Enforcing the covenants is something all Board members have to do regardless if we like it or not. I think that this is what that board likely initially did before they knew of the mitigating circumstances (i.e. the medical condition of the child).

The story had a lot of talk about providing a waiver. Technically, the Board normally may not waive a covenant (some can, but that language is within the CC&Rs).

So, did the Board now create an issue where a covenant is no longer enforceable?
Did they place the Association at risk of litigation from another member for allowing a waiver?
Was it really a guideline that initially prevented the issue and the Board member was inexperienced and called it a covenant?
Did the membership amend the governing docs to allow the structure?

All I'm saying is that there are very logical and real reasons why a Board must deny applications, regardless of the circumstances behind it. Anyone who has served on a Board is (or should be) fully aware of this.

Again, I'm glad the issue was resolved and the child will be getting the small house and I support that decision. It would be helpful from a Board members perspective to see how they resolved the issue and what consequences might that resolution have with it.

By the way Tim, I'm perfectly aware that there was something in the covenants that the Make-a-wish playhouse violated plain and simply. I said there is no excuse or reasoning that would justify their denial and that is how I feel. Not literally nothing or contractually Tim but in my opinion nothing could justify their denial.

We all know that there are consequences to every decision. Some known, some unknown.
Sometimes, you don't know what the consequences are until years later.

That Board made a decision, likely a proper decision based on their covenants.
Their intended consequence was likely to do the job they were elected to do.
The unintended consequence of the decision was the bad publicity.

The Board now reversed their decision.
The intended consequence was likely to remove the media attention.
The unintended consequence might not show up until years later when a member brings legal action for selective enforcement by denying their playhouse but allowing this one (yes, I know, an extreme possibility but it's good for illustration purposes).

Again, I personally support allow the playhouse.

Simply wish we knew if it's a temporary waiver as John suggested, or if they just said the request was allowed to get the media off their back with no thought of potential consequences such a decision could cause.

Amanda, here is the statement from the HOA that was sent out yesterday:

"Today, we are happy to share that we have reached a positive resolution to ensure Ella's playhouse will be constructed."

"Our board met with JE Dunn Construction and Make-A-Wish to gather additional information, and while we still have a few details and timelines to work out, we collectively reached the conclusion that Ella will get her wish. We couldn't be more pleased to see that happen."

"JE Dunn is thrilled to design and build the playhouse."

http://www.kctv5.com/story/28275507/hoa-decides-to-let-girl-battling-cancer-get-playhouse

Oh, to go back to the original question "what would I do?"

I really don't have enough information to answer that.

I don't have access to the plans, the governing documents or the architectural style of the neighborhood. I don't know if the issue was an actual covenant or an architectural guideline.

Perhaps I would suggest changes to the plans so they could be approved (which, based on Jerry's last posting, sounds like something that was actually done).

Perhaps I would have denied it based on existing plans and invite them to resubmit.

Perhaps, if allowed, I would grant a waiver with the requirements John suggested.

Perhaps, if time permitted, I would have requested feedback from this forum who could look at the issue from an outside perspective.

Understood.

The worst case of a repercussion I can think of could be legal action against you directly for knowingly failing to comply with the governing documents by allowing the playhouse. D&O insurance might not cover the legal expenses because you willfully and knowingly chose to not enforce the covenants.

The worst case of a repercussion for the Association could be future litigation due to selective enforcement by allowing this request and denying another similar request.

Again, I support that the Board has found a way to make it work.

I'm glad to see that you and others are willing to go the extra distance to make things work.

My point is, that as Board members, we don't always have the luxury of allowing things to work. Sometimes, we simply have to enforce the governing documents as they are written, regardless if we like the decision that has to be made or not.

A good example of those decisions is the varied opinions provided on my thread of working out a payment plan for a member with a financial hardship.

Tim,
I feel that your example of the payment plan thread is not in my opinion comparable to this case. Although I agreed with your viewpoint in that example I could see there being room for argument. This case to me is about the life of a suffering child, and the ability to make her happy while she is alive being more important than CC&Rs.

I'm sure there was been a legal avenue (such as a waiver) to have taken care of this from the get go, rather than causing all that added sadness and stress on that poor family and child.

With all the discussion aside, and because of how my family has been affected by pediatric cancer, I am a huge supporter of the Make-a-Wish foundation. They do an incredible job granting wishes to sick kids. We got a trip to Disneyland for the entire family. After all the chemo treatments, office visits and hospilizations, it was awesome to see the smile on his face going on his favorite rides (he is obsessed with the Cars characters).

I am glad the HOA board found a reasonable solution to allow this sick girl's wish for a playhouse.

Amanda, thank you. It's been a tough 2 years. He went into the hospital on a Friday, got his acute lymphoblastic leukemia diagnosis on Saturday and celebrated his 4th birthday on Sunday. He is considered in remission but faces another year of monthly chemo maintenance. On top of all that, he is also autistic. So that presents an entirely different set of difficulties with his treatments.

Amanda

Your original post was basically: I have not read nor know anything about the issue, but I do not care what this child wants. Just give it to her.

I wish being in a position to have to make decisions was that simple. It is not that simple. It can be rather heart wrenching and make one feel bad but "with authority, comes responsibility". This often requires making the "hard" decisions one wishes they did not have to make.

Although, there was a good outcome in the end to this story. Sadly, sometimes when people see this kind of thing going on they don't always stand up for what is right. Some people are afraid to get involved in any way if it doesn't affect them directly, so they look away. In my opinion it's a big part of the problem in poorly run HOAs, the're allowed to continue bad practices and therfore get that feeling of unlimited power (and give other HOAs a bad reputation when their behavior make headlines). I'm actually surprised and a little disheartened that more experienced posters here had no comment on this (not really sure what that actually signifies).

This BOD had no opposition. Even if they thought there was a remote possibility that someone would oppose, they had opportunity to easily find out via their HOA website, it was there choice not to do that. They knew the circumstances of this family, the entire neighborhood was rallying around this sick child. They should have applied common sense. They give HOAs a bad name, using the kind of by the book/rule tactics in situations that require out of the box thinking and compassion.

Yes I would.

No I don't think at all that this HOA was between a rock and a hard place in this situation. They had EASY avenues to add a personal, human touch and communicate with this family rather than send a cold, denial letter. This is IMO what make the world of difference in the entire attitude of some HOAs, their attitude.

This HOA could have thought like normal human beings with common sense and they could have avoided all the well deserved criticism. I'm sure they learned a lesson and hopefully other HOA boards reading the story will to. Thank goodness most HOAs would not do what they did anyway.

Haven't seen that video, just saw it on their HOAs website. I agree with your statement about unintended consequences but I call it Karma. Hopefully everyone in the neighborhood doesn't have to pay for the BOD failing file. Bet that BOD wishes they did just the right thing from the beginning now. I guess the good consequence is maybe now that the residents are aware that things aren't being managed properly they'll be better off in the end knowing about it. I have a feeling that BOD would be on their way out the door anyway.

Amanda,

You know that that is an incorrect statement.

Many companies, Associations and even individuals spend money to defend themselves in court even though they do everything "by the book." Innocent people are often taken to court.

As I said, I agree that the Association should have found a way to support the issue initially. However, I'm not going to pass judgement on that Association because I simply do not have all the facts surrounding the issue.

All I was doing was pointing out that there are intended and unintended consequences for every decision made. Sometimes individuals or Associations are focused on an intended consequence that they fail to consider potential unintended consequences. To me, that is the difference in making a decision vs. making an informed decision. In my experience, informed decisions are typically the best ones to make.

I'm glad that the issue about the play house has been resolved. I'm glad that Jerry was able to see his son smile and enjoy family time because of the make-a-wish foundation (Jerry you have my thoughts and prayers).

and yes Tim my comment about the association doing things by the book was sarcastic in nature

Well, JohnB we don't have to go all anti-HOA. That wasn't my point. It's just such a pet peeve of mine when a HOA makes such a cruel move without using any commonsense or compassion. This case is the worse I've heard. Most HOAs are not that foolish, that HOA gave their neighborhood a bad name, and added to HOA hatred.

Tim mentioned a lot of attention about that HOAs legal status, I had to search the web lot and found only one site (seemed like a site to help homeowners with resources if they are being treated wrongly by a bad HOAs, yes some bad HOAs do exist, and I think some homeowners need advocates to help them). This homeowner advocate did mention the story of the sick child and mentioned that the HOA had let their non-profit status expire, questioning their legal status and whether or not they were paying taxes or not. I didn't see it on any mainstream media or a lot of attention called to it. I saw no indication at all that the advocate would be taking legal action against that HOA.

What bothers me most about the story is that the child had been originally given a 5% survival rate which has been now lowered to a 2% survival rate by her doctors! That fact was well known in neighborhood and they still denied the playhouse, that fact alone says it all. That BOD does not deserve anyone defending their heartless action, there is NO excuse. IMO all of us should be appalled and even embarrassed by their actions. That HOA gives us a bad name, IMO defending or giving them sympathy make us look even worse. I hope/think I have never been part of or lived in a HOA that would be sit back and be silent on an issue like this.

JohnB,

To answer your question, Personally I would be not only fine with it, I would encourage them to do it in this case!

The OP wast specifically asking "What would you do?" referring to this case. Some things need to be considered on a case by case basis, that is common practice within many HOAs (this is one of those cases). Their initial handling of this case was cruel and deserves the harsh criticism from around the world they are now receiving. I hope it makes some HOAs think twice before acting in a similar manner (if they don't do it from the heart then maybe they'll do it for fear of shame--whatever works). The attention this case has received, hopefully will prevent other families going through what these people did, that would be a good consequence. (Sorry, IMO there is no other way to look at this case.) I am basing my opinion on this case not any other possible or hypothetical circumstances, that discussion would be for another thread.

I agree with your ps. & pps.