Interpretation

NO, unless it is attached to the unit.

BB hoops cannot be attached but movable ones can be used, but stored out of view when not in use.

As Richard point out, the portable hoops could be used but must be moved into the garage or enclosed rear yard (out of sight) when not in use. This means even when the player break for lunch, as we all know that is when the Association will see the darn thing and cite you.

It is a wooden play set that has a platform, swings and slide. It is not cemented into the ground, but would take more than one adult to move.

If this were not clearly for children, then I would interpret this as recreational equipment that is not portable and so is not allowed. But (1) it is clearly for children; (2) the covenant talks particularly about "sports equipment," and I can't intelligently argue that this play set is "sports equipment" in the context of the covenant; and (3) "exterior portion //of the dwelling//" to me refers to the structure being attached to the house ("dwelling").

Disallowing play by children is often seen as discrimination on the basis of familial status, in violation of federal (and probably state) fair housing law.

I think I would rule the play set is consistent with the covenant you cited.

By any chance are there other covenants that talk about structures in people's yards?

Let's see what impression others have of this situation.

Accessory Structures and Outbuildings:

No tent, shack, barn or utility shed shall, at any time, be erected on a lot and used temporarily or permanently as a residence. Accessory structures and outbuildings may be erected in the rear or side yard area, but must conform architecturally to the dwelling, and a plan for such must be approved by the Architectural Review Committee as hereinafter set forth prior to its construction. Such accessory dwellings shall have no less than two hundred (200) square feet.

Sam

Why the inquiry?

Yes, they can be prohibited on common property but not from an owner's lot.

If the architectural review committee and the member can get the playset to reasonably conform architecturally (whatever this may mean), and the architectural review committee then formally approves the playset, and with an eye to the complaints HUD frequently prosecutes because a HOA has disallowed a playset, then I think the playset should be allowed.

I should add that we are an extremely small community (15 homes) and we are the first to have a play set, but we are the only family with young children.

I would imagine that liability is utmost in the Board's mind.

How would it be monitored? Is your yard fenced?

Yard is fenced. It is on my property so would be my liability, not the associations.

Thank you. I just saw this. I apologize I did not provide the whole story before. I was just trying to get everyone's input on whether a playset was covered under the rule listed in my first post on this thread.

We did request permission in June of last year before our house was completed. It was denied based on the section listed in my first post. We decided to wait until we moved into the home in July and get to know our neighbors a little better. As I mentioned, this is a small community, 15 homes, 5 member Board/ARC. We requested an appeal to the June decision in late November. Our request for an appeal was flat out denied based on the fact that they already made their decision in June. At that point we sought legal advice and decided to put the set up in late December. A day before the set was to go up, we received an email that our appeal would be held. We cancelled the installation until after our appeal in January. At our appeal we told the board that we had seen a few attorneys and that the consensus was that the play set would not fall under the common understanding of "basketball hoops, back boards and similar sports equipment". They listened to us, but gave no response at all. We scheduled the set to go up and received an email about 30 minutes into install that they board unanimously denied our request again.

We have since received 2 violation letters. I believe there is one more to be sent before they decide to fine us. I assume at that point it truly enters the legal realm. We have no intent of taking the set down or suing the association, but I assume they will be suing us.

Side note, it has been argued and won in other States that an Association can only impose fines/monetary penalties if the Covenants (CC&Rs) specifically allow it. If my previous scenario goes into play, that would be the best argument against the fines.

I concur with what TimB4 says about fines, except in court, the play set will come up, and the fines will be retaliation for your exercise and enjoyment of your fair housing rights.

Also you might want to confirm what insurance the HOA has. Some insurers do not cover the cost of claims of unlawful discrimination. Whatever the HOA insurance situation is, and assuming the insurance company is properly put on notice, count on the insurer consulting with the HOA attorney and calling a lot of the shots. I think this will probably be to your advantage. It takes the egos of the board members out of the picture. Though again, I expect all this will be very ugly.

Check the documents and your local laws to make sure you can recoup the legal fees when you win. If you can, lawyer up now and fight. It's for the kids!

I think the rule is a little vague but I would say that a play set (like playground equipment) is recreational equipment. The question is how do Florida courts rule on vague or ambiguous CC&Rs.

I think it is a stretch to say not allowing playground equipment could be considered discrimination against families but I haven't seen this question before. I would check the U.S. Dept. of Housing and Urban Development (HUD) website and if you can't find the answer there, call your area's HUD office.

Rather than wait for a third violation letter, why not check if the board would be willing to go through some sort of alternative dispute resolution process? I don't know if there's a program available in your area, but usually, an independent arbitrator would listen to both sides and render a decision. The arbitrator could be paid by both sides, with the winner reimbursing the loser his/her portion. Your attorney might know of someone who's a certified negotiator. It would be cheaper and less dramatic than court.

Regarding your action up to this point, I think you made a big mistake when you put up the playground equipment. You knew what the rules were and requested permission, which was appropriate and filed an appeal, which was also appropriate. If you went to an attorney about this, it would have been better if he/she contacted the board to see if they'd be willing to listen to another appeal. Instead, you built the thing anyway, apparently thinking it would be ok because the attorney said so.

It would have been nice if the board had allowed another appeal, but in some cases, the board's decision is final, which may be ok by your documents. I don't know how a judge will rule in this, but if you lose, it'll likely be because the board made its decision, but you didn't seem to care. I'm not saying you're entirely wrong, but if you really wanted this set, it would have been better to talk to some of your neighbors and get them to support changing that portion of the CCRs. That may have taken a little more time and effort, but during that process, you could have started a discussion about liability could have ensued, the board could have checked with the association's master insurance to see how playground equipment could be allowed without putting the association at risk (e.g. not allowing swings to prevent someone falling out and bashing his/her head).

Good luck to you, whatever happens.

Ben

Were you the poster sweating out a shed approval?

Thanks

After reading your post closer, I agree that the section you quoted probably does not include play sets. Titles can be misleading.

I think, JohnC, it was a man from TX, Carl (?) He was verry worried about the HOA "deep state," but easily got approval for his shed. . We haven't heard from him since.

My opinion is the OP should have asked for permission to install the playground equipment. The first sign of this? No one else had one. I do believe the HOA can limit or restrict certain playground equipment. They can be a liability issue and a noise creator. Neighbors may not want to hear screaming crying kids. Which is also a consideration for the HOA.

Not that I am against playground equipment. We did have some that had one in their backyard. It just was their responsibility to keep up with. We just had to approve that it wasn't a distraction and fit into the area. Basically it could not be viewable above the fence. Some HOA's may even want it to be more matching to the home materials.

I do interpret as recreational equipment that should have been asked for approval.

Or Sam installed this play set because his kids needed a place to play outdoors.

From what I see in court cases, those folks who go ahead and install what the Board had disapproved do not have this aspect held against them. I think it's more likely that, if the HOA takes Sam to court, the court will be irritated that the HOA could not find a way to keep this out of court.

The Board gave no reason for disapproval. Presumably this is because the Board felt it was sufficiently obvious that the play set is in violation and also did not want their explanation used against them. But I believe This HOA's attorney is parsing the language of the covenants just as people here are doing, because he or she will have to give more of an explanation in court. If the HOA attorney is really on top of his or her game, then he or he is also watching out for discrimination on the basis of familial status, in violation of the Fair Housing Act and probably state law. Ambiguous covenants are resolved in favor of the free enjoyment of land. Unless the HOA Board and the HOA attorney are both fools, foolishly itching for their own fight but this time, before a judge who will be disgusted he or she has to rule on this while much more important matters loom and taxpayer dollars are squandered, I do not expect this to go to court.

It's true that some people might win although they were told no, but there are other court cases where the opposite has happened. How many times have we seen on this board where people read their documents, don't like what it says and then go "fishing" for answers they do like, whether it makes sense or not? Or do what they want because "it's my house, dammit and I'll do what I damned well please!" I realize he has young children and they should be able to play in their backyard, especially if there are no parks nearby, but that's not the association's problem.

I agree the board should have at least given a reason for disapproval because it doesn't seem to be "sufficiently obvious that the play set would be in violation." I still think no one's ever called them on their decision making process and because this guy has done so, they've fallen back to the "we are the board and therefore we are" attitude - and it could backfire if the judge says 'damn, you could have at least given him a chance to plead his case, but you're being unreasonable. For that, I rule the swingset stays."

OR "did you have your attorney talk to the board? No? Why not? If they told him/her to pound sand, I could see your coming to me at that point, but you built the swingset, knowing it was against the covenants?
What did you think would happen as a result? Go away and tear it down!"

I find it interesting the poster has come here asking for interpretation when he had a lawyer take a look - we haven't seen the documents and we aren't lawyers. I still say he should have had the lawyer write a nice letter asking for the appeal and perhaps providing HIS opinion on that portion of the documents. Sometimes the sign of a legal letterhead is enough for people to slow down, think for a few minutes and then approach the homeowner to see if there can be a compromise.

THAT's where you get a better discussion. Maybe the board doesn't realize (or wants to admit) that the the neighborhood has changed to where there are a lot of children and it doesn't make sense to say people can't build playground equipment. Perhaps they should ask homeowners what they think of this rule - should it stay or go or be tweaked to allow some things and not others? If they dig in, go ahead and go to court if you want - a court summons and threat of bad publicity when a reporter gets wind of a HOA denying a playground set without listening to an appeal might get them to back down and at least listen.

I agree the judge might get really P'O'ed that he/she has to listen to this stuff, but that's what they're paid to do - and that doesn't guarantee a win for either side. We could get the ". If I were the judge, I would likely order everyone to sit down and let the homeowner speak his piece (like the board should have done when he asked for an appeal) and hash this out before I rule on anything.

By the way, many people who buy swingsets end up tearing them down in a few years when the kids get older and are no longer interested or outgrown it - that could be added to the documents upon homeowner approval. The documents could even say this cannot go in the front, only in an enclosed backyard and it can only be so big and perhaps toss the swings because people like to tear them off and steal the chains (that's what happened to our community playset), no playing on it after 8pm, due to noise, etc., etc.

Thank you everyone for your responses. I appreciate all points of view. The reason I came here even after speaking with an attorney is because I know many of you serve/served on boards and can offer your experience and perspectives on how you read the rule, as it is the only reason the Board has given. I am no expert and know that attorneys get paid no matter what, so they may bend the truth a bit to get business. This is a vague rule that could go either way. Our community is very small. One third of the homeowners are on the board. We never thought we had to ask permission but a board member told us we did. So we did without seeking legal advice at that point. We do not want to waste our or the associations monies, but if they are wrong I do not think we should just bow down either. In Florida we will be sent to mediation and this will likely not see a court. We would have gladly picked a different set, location or landscaped to hide the set if they would have just conversed with us. I am coming to understand that our board is run very poorly. There is no notice of meetings except the annual meeting and there are no elections. That is another hurdle I will have to conquer, but it is a bit intimidating that 5/15 homes are on the board. Either way, I just wanted to make clear that I had no ill intent by coming here and asking opinions and I do sincerely appreciate the time you have put into your responses.

So you are saying if a lawyer disagrees with how the BOD operates, you should ignore the BOD and do as you wish?