developer approved boat

CfD,

Covenants normally would apply to all lots within a development, especially if the covenants were recorded as one document for the entire subdivision (as opposed to having a set of covenants attached to each deed).

Assuming that there is some sort of evidence that the developer/declarant permitted an owner to park a boat when the recorded covenants forbid it, an argument could be made that the declarant himself invalidated that part of the covenants. If it was waived for one then it should be waived for all.

Since the homeowner with the boat apparently has a written waiver from the declarant and the boat has been parked for a decade, your association would have a difficult time convincing a judge that a violation exists. The mere passage of time often bars many otherwise valid claims. Even though the developer controlled the association, any owner could have sued to enforce the covenant against the boat yet none did, implying consent among the other owners.

Your wisest course of action is to do nothing about the boat that is already there. If others ask, "if he can park his boat on his property, why can't we?" the most honest response you can give is, "The association has no authority to waive any covenant." Leave it up to each homeowner to determine whether the covenant prohibiting boats is valid but do not waste your resources trying to enforce what may no longer be enforceable.

If your member controlled, then you all have the power to change/modify the rules you live under. Simply put, your HOA has the ability to modify/change it's documents as it feels fit by majority vote of the membership. If a majority wants to keep boats and trailers, then you follow the process of removing that from your CC&R's and re filing the documents. It may or may not take a special meeting to process.

I say it's a good idea for every 5 to 7 years to make the rules fit lifestyle changes and laws.

Cf,

As we know, the devil is in the details. Therefore, the opinions and advice offered by many is based on what are typical details and may not be the specific details for your Association.

However, having access to your governing documents (as an FYI, this development has a 53 page set of CC&Rs), I took a look and could not find anything in the CC&Rs which prohibit boats or boats on trailers. The Bylaws (a 19 page document) do not prohibit boats. Now, the Architectural Guidelines(a 22 page document which appear to also be utilized as adopting rules/regulations) does prohibit boats from being stored on any Lot unless it's inside the garage.

Per the CC&Rs, the developer had initial control of the Architectural Standards Committee (ASC) who's job (per the CC&Rs) is to approve plans, use of lots and enforce violations.

According to section 7.06 of the CC&Rs, once the ASC approves something it is final. The approval can only be revoked or rescinded if the approval violates the CC&Rs. Since the prohibition of boats is not within the CC&Rs, the Association may not revoke the approval granted to that individual by the developer (who controlled the ASC at the time).

Additionally, per section 7.03 of the CC&Rs, allowing one individual to have a waiver of the rules/regs does not require the Committee to grand a similar approval by anyone else. In other words, an argument could be made that your governing documents actually allow selective approvals/enforcement.

Here is the exact wording [emphasis added]:

j. Waiver. The approval of the Architectural Standards Committee of
any plans, drawings or specifications for any work done or proposed, or for any
other matter requiring the approval of the Architectural Standards Committee
under the Restrictions, shall not be deemed to constitute a waiver of any right to
withhold approval of any similar plan, drawing, specification or matter
subsequently submitted for approval.

Will such wording withstand a legal challenge? That's an unknown. Most cases alleging selective enforcement that I am aware of didn't have this language in the CC&Rs.

Again, the devil is in the details.

To answer your specific questions:


As identified earlier, the prohibition is in the rules/regs. Rules and regs should, in my opinion, only be written for the common area or to clarify what is written in the CC&Rs.

Rules and regs can be changed and, in my opinion, should be reviewed and changed as needed every 5-10 years (as things simply change over time).


Not per your CC&Rs (as I'm interpreting them).


Since one is allowed, the only fair thing is to allow all.

Write some rules that specify approved screening to keep the aesthetic view from the street.

However, If there is a conflict between two documents, the higher precedent document controls (unless it cedes control to the lower document). In fact, your guidelines actually say that [emphasis added]:

These Architectural Guidelines should be considered together with the Declaration, and the other Governing Documents (as defined in the Declaration). If any provision of these Architectural Guidelines conflicts with the terms or provisions of any of the Governing Documents, the terms and provisions of the applicable Governing Documents shall control.

Covenants specify limitations on the lot.

Rules and Regulations apply to conduct and activities on common areas.

Architectural Guidelines are specifically that, guidelines to provide a standard for the approving authority to go by when deciding what will or won't be approved. In fact, that is exactly what the cover of your guidelines say:

These guidelines serve as a uniform guide to both [name] Association members and the members of the Architectural Standards Committee in maintaining and enhancing our beautifully developed community. These guidelines and standards address improvements for which homeowners will most often submit applications to the Architectural Standards Committee. They are not intended to be all-inclusive or exclusive, but rather serve as a guide to identifying improvements permissible in the community.


However, if there is a conflict, then it doesn't matter.


Ahh, but what questions were asked when seeking legal advice?

Asking for a review and legal opinion of a document is one thing. Asking for a review and legal opinion if anything in the document conflicts with another document is another.


Hopefully that behavior won't come back and hurt the Association in the future.

Keep fighting the good fight.

No, that's not what I'm saying. Per the language concerning waivers in your CC&Rs, If a waiver by the ASC is not in compliance with the Declaration, said waiver can (and should) be revoked by the Board.

However, per your CC&Rs, if a waiver by the ASC does not violate any restriction or condition specified in the CC&Rs the waiver may not be revoked. Again, that is per the terms of your contract (the CC&Rs).

Cf,

I don't have your governing documents with me. Therefore, I can't answer that.

However, if the only requirement on the size of the home is in the guidelines and not in the CC&Rs, based on the terms of your contract (the CC&Rs) as I (a layman) understand them, then the ASC could authorize a waiver.

You may certainly disagree with that. However, that is what your contract appears to say. You would need to get a legal opinion to be sure and a court case to be positive on what the contract actually says. The question to ask on the legal opinion would be that exact one you asked:

The guidelines specify a 2800 sq ft house as a minimum.
The CC&Rs allow the ASC to grant waivers and specifies that such waiver is final unless it's in violation of the CC&Rs.
If the ASC granted a waiver to the size of the home, could that waiver be revoked by the Board under the terms of the CC&Rs?

If you don't like that the contract says that, then change the terms of the contract.

Yep