Rule more restrictive than covenants?

Started by JenniferB14 • 21 replies • 1359 views

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JenniferB14 (Colorado)
Posts: 148

Posted:

“.... any detached green house shall not have a ground floor area of more than 1500 square feet.”

The proposed ARC rule is that any detached greenhouse must have a minimum of 600 square feet.

Though this rule does not overtly contradict the covenant it does further restrict the covenant in a covenant that does not appear ambiguous. A new rule must also be deeemed reasonable and there is no real reason why this change is being sought, after all there are many greenhouses in the neighborhood which are online type kit greenhouses averaging 8x10 or 10x12. Only one greenhouse exists that I know of that is at or above 600 square feet.

Courts I know must rule in favor of free use of property if the covenants are ambiguous.

Thoughts?

RichardP13 (California)
Posts: 3,868

Posted:

Rules are supposed to be "fair and reasonable".

Any reason given WHY a minimum of 600 sq ft?

LetA (Nevada)
Posts: 2,679

Posted:

I really don't understand what you are trying to convey. Shall and Must are two POWERFUL words in legal jargon.
You have one line that reads that a greenhouse shall not exceed 1500 sq ft and the other line that reads that greenhouses must have a minimum of 600 square feet.
What is the problem? you're talking abbot mini greenhouse kits that are about 5.5 feet square.

JenniferB14 (Colorado)
Posts: 148

Posted:

LetA...

Exactly. The actual covenant is the Shall... that it shall not be more than 1500 square feet.

The PROPOSED new ARC rule is that any greenhouse must have a MINIMUM of 600 square feet. Therefore the proposed rule limits and restricts the original covenant.

And NO, there is no reasonable nature for this rule. There are several small greenhouses in the neighborhood averaging probably 100 square feet or so

JenniferB14 (Colorado)
Posts: 148

Posted:

GenoS (Florida)
Posts: 4,276

Posted:

The covenant specifies a maximum size. I think a rule regarding the minimum size doesn't create a conflict with the covenant at all. Obviously people's interpretations will differ but I see it as a pretty clear cut difference.

RichardP13 (California)
Posts: 3,868

Posted:

I looked up the price for a decent greenhouse and it was $10,232.00, plus FREE delivery. Problem was is was only 20 x 13 or 260 square feet. Not knowing the circumstances behind your homes and the rule itself, I would have a problem.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By JenniferB14 on 01/02/2018 11:35 AM
“.... any detached green house shall not have a ground floor area of more than 1500 square feet.”

The proposed ARC rule is that any detached greenhouse must have a minimum of 600 square feet.

Though this rule does not overtly contradict the covenant it does further restrict the covenant in a covenant that does not appear ambiguous. A new rule must also be deeemed reasonable and there is no real reason why this change is being sought, after all there are many greenhouses in the neighborhood which are online type kit greenhouses averaging 8x10 or 10x12. Only one greenhouse exists that I know of that is at or above 600 square feet.

Courts I know must rule in favor of free use of property if the covenants are ambiguous.

Thoughts?

Jennifer, I agree with your reasoning. The new rule (regarding a minimum of 600 ft^2) is an attempt to amend the Declaration. As such, a vote of the members would be necessary. Even if the members vote to amend, it's still not guaranteed that the amendment follows the law, for the reasons you give about free enjoyment of property. Also there is an argument that the amendment sufficiently changes the general plan for the development so as to make it unreasonable.

KerryL1 (California)
Posts: 14,550

Posted:

I'm with Augustin. It would amend the declaration in that anyone wanting a greenhouse would be forced to spend a lot of money t get one large enough, about 20 x 30 sf.

I looks to me like that the ARC actually wants to limit the numbers of such structures by making the size/price UNreasonable, perhaps, for some Owners. As Richard suggests, why not ask the ARC WHY? they want this change. If the proposal makes it to the Board, wouldn't/shouldn't the Board have to give a reason why they approve it, if they do?

Is the Board likely to take the ARC's recommendation? Are you on either Jennifer? Do your governing docs or CO HOA laws require that proposed rules go out 30 days in advance to Owners for their comments before the Board can vote to approve new rules? (We have such a law in CA)

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Am I missing the math here? The ARC says it must be minimum of 600 sq ft. The Covenants say can't be larger than 1500 sq feet. So as long as you have a floored greenhouse that measures between 600 to 1500 sq feet your square... I think by minimizing restriction is a way to have a guideline have a minimal measurement. Otherwise one could build a 400 sq foot which would stick out a bit.

It would be like someone builds an outhouse and calls it a "green house". How would you be able to enforce the measurement of a structure if you don't have a minimal measurement?

Former HOA President

PaiN
Posts: 73

Posted:

meter @ 100

FredS7 (Arizona)
Posts: 927

Posted:

1500 square feet is huge, the size of a small house.

Is this an association of McMansions, where an outbuilding the size of a small house would look reasonable? Are the lots big enough?

Are you sure somebody didn't put in an extra zero when writing the CCRs?

KerryL1 (California)
Posts: 14,550

Posted:

I'm wondering, too, Fred!

JenniferB14 (Colorado)
Posts: 148

Posted:

haha.... we are rural on 5-35 acre lots. We do have someone with a greenhouse the size of an apartment actually. We have barns and guesthouses too... those are a maximum of 2500 sq feet. So no, I don't think it was ever a mistake.

A large greenhouse is simply unreasonable which I imagine is the reason why the covenant read the way it did... to allow various sizes of greenhouses with the maximum being 1500 allows much more flexibility.

I think the reason is exactly as someone else said...they are trying to prevent people from building smaller structures, and by keeping the square footage up I think it does exactly that. I have been entertaining an 8x10 greenhouse and that is plenty big enough. We have a lot of power struggles happening in our community right now.. this change is a surprise, and there is no given reason.

My main concern was if the board had the power to create a rule that is more restrictive than the covenant. I agree that this rule does not clarify the covenant but actually further restricts it and changes the meaning in doing so. They are also saying they will no longer allow children's playhouses, and putting very specific restrictions on children's playsets, and also proposing to regulate all sports equipment like basketball hoops, soccer goals, trampolines etc. With this much acreage people want to be left alone and it is getting ridiculous.

PaiN
Posts: 73

Posted:

what does your attorney THINK the judge will rule ?

meter @78%

BenA2 (Texas)
Posts: 1,273

Posted:

The rule is on its face invalid. ARC rules and guidelines can be used to clarify covenants or create standards when the covenants give the ARC discretion but they cannot create a restriction that does not exist in the covenants or change the restrictions.

As you said, the restriction is unambiguous and the ARC has no authority to change it.

Ben Andrews, CMCA

JohnC46 (South Carolina)
Posts: 14,265

Posted:

The Covenants allow greenhouses and sets their maximum size. The proposed rule does not conflict with this. The proposed rule just set a minimum size. I say the rule could fly. Remember a BOD can make and/or change rules. Rules are not cast in concrete.

DouglasM6 (Arizona)
Posts: 724

Posted:

I agree with Ben Andrews^^

I suggest you go talk to an attorney. Ask the attorney to pen a letter stating the ARC is overstepping their boundary and send it to them. I would then alert the neighborhood to it and prepare to recall the current bard, or vote in a new board when the time comes. I can't see any of those rules mentioned standing in a court of law.

PaiN
Posts: 73

Posted:

..... Remember a BOD can make and/or change rules. .....

correct in part - rules which govern a 'common area'

NOT

restrictions against private property

PaiN
Posts: 73

Posted:

meter approaching 100%

KerryL1 (California)
Posts: 14,550

Posted:

I'm with the OP, Douglas, PaiN & Ben, as I wrote above. This WOULD, imo, be an amendment to the convents not a mere rule addition.

Douglas' advice looks good. And also, this hasn't even reached the board yet for its decision. Can a bunch of you, Jennifer, attend the Board meeting when this is on the agenda? and put on the pressure?

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By PaiN on 01/03/2018 10:02 AM

..... Remember a BOD can make and/or change rules. .....

correct in part - rules which govern a 'common area'

NOT

restrictions against private property

Florida has special meeting notice requirements where, "amendments to rules regarding parcel use will be considered."

That sounds like rules CAN impose restrictions on private property (as long as they don't conflict with any of the other documents).

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