communal property

I would be reading (1) the governing documents; and (2) any other legal documents concerning the property. Else I suspect both the HOA and the member have certain rights concerning the property further than 3 feet from the house. (This was the case at my last HOA.) Can you say what exactly it is that the member wants to do to the property that the HOA feels is unacceptable?

Sounds like the governing documents authorize the HOA to maintain the parts of the property in question here. In which case the owner is wrong to assert that he and he alone controls these parts of the property.

I think there is some question about whether a swing may be hung from a tree that the HOA is responsible to maintain. I think chances are the HOA has the right to remove the swing and/or trim back the tree, particularly for liability reasons, like a kid falling from the swing and breaking her or his arm.

If you sense harassment by the Board on the basis of familial status, the federal Department of Housing and Urban Development (HUD) can respond to complaints of HOA board actions that attempt to drive out families. You can tell the member about this. War will ensue.

Increasingly I am thinking the best route to go with a rogue board is either to move or to hunker down and not get involved in the activities of the HOA. Member apathy is typically so high that the effort to replace a board will define one's life. I just read the original, 1993 account of Bob Kearns's battle against corporate automakers to pay him for his intermittent windshield wiper invention, at
www.newyorker.com/magazine/1993/01/11/the-flash-of-genius . He quickly made his efforts to recover the value of his invention his full-time job, employing several family members as well. He is long since deceased; he did see the money in his lifetime; and his family today is now terribly rich. When the rewards are within reach, perhaps letting this become his life makes sense. But with a HOA battle, there are not the same rewards.

Joseph, as I am sure you can imagine, that attempted Halloween ban would be more ammo for any member wanting to file a complaint with HUD. Your Board is being foolish. This could cost them big buck in a battle with HUD. My HOA (rightly) lost a battle with HUD and imposed an enormous special assessment on each member to pay the attorneys' costs and the settlement cost to the complainant.

Your hesitancy to take on this battle is my hesitancy. Though I think I would at least raise the HUD discrimination issue with the Board, googling for examples and pointing out the risk the board is taking. Else I think you're a good person. Your objections would be my objections. Thank you for doing the right thing.

Has anyone checked a map of the property to see where the property lines begin and end? If your property manager doesn’t have one, perhaps something’s on file at your recorder’s office or zoning office – you may want to call your city or county offices to check. You may also need a surveyor to double check the measurements.

What do your documents say regarding landscaping? For example, if the association is responsible for caring for the tree, the board likely has the right to decide to prune it or even remove it. It would also be appropriate to have the owner remove the swing if he didn’t ask permission to install it (because if someone gets hurt, the association will get sued).
Since you’re on the board, what exactly was the conversation regarding this and the swing? Was there a vote - and were you outvoted? Has there been any complaints regard the swing? Has there been any history of conflict between the association and this homeowner? You said “I personally think they were just trying to get this couple to take their young kid’s swing out of the tree and just mess with them” For some reason, I get the feeling there’s some back story you aren’t telling us.

PS. Please use periods instead of commas to separate your thoughts – it makes things much easier to read.

In our HOA, the owner owned the house and the lot the house sat on. Everything outside that lot was considered "Common property" which is owned/maintained by the HOA. An owner may have "Exclusive use" of some of that area. Which the HOA can still write up on violation. Since our HOA responsibility is to maintain lawncare, this allowed us to mow without "trespassing". It also meant the property was owned by ALL the owners.

The HOA still had to approve and had the right to remove violations to that common area. We did not levy fines. Instead we could fix/remove violations on common area and send the bill to the owner. If they did not pay, then we could file a lien. This is a bit controversial for many here as they believe that would require more legal actions to enter property. However, in our HOA it was well established and in the rules one did not own the property outside the lot. It's been a hanging point on a few home sales. You still pay taxes on that Lot #.

Keep in mind that each and every HOA is set up differently. It sounds like yours could be set up quite similar to how ours works. If your HOA documents state your HOA is responsible for providing lawn care, then it may be set up to have common and exclusive use areas. Otherwise it can be that one owns the property with proper property lines.

I should mention that we did indeed have a legal copy of the plot lines. We made it available. Matter of fact, I used that map for the lawn care to reference for each lot's needs. We allowed owners to install fences for limiting back yard access. However, if one wanted that area mowed, they had to unlock their gate for access. Lock it, and you did not get it mowed. Plus if I knew one had a pet, it was marked as well.

Like our HOA meetings being open, we we were also very open with our common area policies/limits. I think that is why it was easier for us to NOT levy fines for violations but to fix/remove them. We were up front with potential buyers with our set up as well. Basically telling them "You own the house and the lot it sits on, the HOA owns everything else". Which because of our yards being the size of postage stamps was not a big issue.

Again, this is NOT ALL HOA's set ups. Always refer to your CC&R's for the definitions. It can and does work to have a HOA set up with the common property as ALL owners have an interest. Just make sure if it is set up this way, that it's understood and open. Otherwise, that is when you do get the owner who insist on putting up lines...

I'm unclear on what landscaping the HOA maintains?
Is it only the common areas? Or does the HOA provide maintenance on the owners lots?

In my HOA, we also own our own homes and land. But the HOA does not maintain our property, the individual owners do. So there's no reason for anyone to be on our property unless we allow it.

Like most here, we also have to abide by the rules like no fencing (without board approval), not allowed to take trees down, and we're required to maintain our lawns. But the HOA will not come on our property to maintain anything for us even if someone is in violation, at least not these days. There would have to be a court order to allow them to.