Above ground pools and temporary structures

Since the documents specifically say "In-ground pool" it would seem that any other type of pool is NOT allowed. Otherwise, it wouldn't be specific in wording. Plus an above ground pool is considered a "Temporary structure" since it can be torn down and removed. It also may not be part of consideration when selling the house. The pool could also causing damage to the common area if it is located on "common area". Common area is considered owned by ALL the members/HOA.

The HOA does have a right to remove this structure at the owner's costs if they don't comply. The HOA can (after proper notifications) pay a contractor to remove the pool and send the owner the bill. If the owner refuses to pay that bill, the HOA can place a lien for this amount.

The HOA should send out a letter of warning to the owner that the pool is in violation of the CC&R's. It should include a quote of the exact rules it violates as well. The owner then should be informed they must either remove this structure within 10 - 30 days or the HOA will remove it for them at their cost. You may want to get a quote from a contractor just to give a ball park figure of the cost of removal. Plus the HOA will already have a contractor lined up to do the work if necessary. Let the owner know, they will get liened if they don't pay up.

I am not sure what the role of the attorney is playing for your HOA right now. He/she should already know that your HOA has the right to remove the structure. They may even draft the above letter themselves to send it to them. However, I am not sure if going to small claims court will be the solution. The owner's may take the HOA to court, which is OKAY. It's cheaper to file a counter-suit than to sue. Plus, damages would have to actually occur before any court action could take place. The HOA would have the letter, the rules, and bill to submit to the court that they had to pay out. That bill would be considered "Damages" and be the amount of the judgement plus court costs if requested. The owner would have to prove their case and proof of removal costs they suffered or other damages in the process.

Keep us updated on the situation. It's not many times HOA issues really do go to court.

This is one of those situations in which nobody wins. If the association prevails and secures a judgment for fees and costs, it could throw the homeowner into foreclosure and bankruptcy. If so the association would likely have to pony up for the fees, or end up taking possession of a home that may be extremely hard to sell in this market.

Depending on the judge and the skill of the lawyers, this decision could go either way, but based on the information in the thread, I would tend to think the association would prevail--at least under the rules of interpretation that are used in Hoosierland courts.

One of the key legal arguments here is "like and kind." An above ground pool is of a different character than a swing set or sandbox or brick patio, perhaps even a storage shed. Also, most covenants have a provision that allows a board to enforce covenants and rules, regardless of past decisions not to do so. In Hoosierland courts, such a provision carries siginficant weight in a finding. It allows associations to overlook some infractions, but not others. To some it would appear that it enables inconsistent enforcement, but Hoosierland courts do not necessarily see it that way.

Mike, what is the sense of the other owners? Are they supportive of the association pursuing this course of legal action? Do they understand what the cost will be to individual owners should the association not prevail?

This could be a battle worth fighting, but the risk of success is not insignificant. It is not a slam dunk.

My biggest issue is that very few times does the community get to decide if it is worth it or not. As has already been mentioned, you at $20K into legal fees and yet to get your day in court. And theoretically you could end up recovering your fees from the owner. But as George points out, that could be a tough road and there is a good chance that you can't recover regardless of a ruling. What are the odds the guy has $20,000 in equity? Of course you could take the long road and simply place a lien and wait. Then one day it will pay off (hopefully), but that will be long after the pain of +$20K has been felt.

As a note, the whole thing could get even more expensive if the guy realizes what he has done because he could drag out the whole tearing it down. And while you may have the right to tear it down yourself, that "right" doesn't fly in every jurisdiction. Be careful of charging onto a person's property as it may not be as easy as it appears on paper.

Desperate? Yes. That's an old defensive/offensive ploy in HOA disputes.

However, if you can substantiate that you do have regular and consistent enforcement of reported violations, then you really have very little to worry about.

They can "interpret" swing sets and basketball poles any way they want. Unfortunately, they probably aren't named in the governing documents as a group that gets to do that.

Most like the board is given the ability to interpret.

Most like the docs also state somewhere that the board's interpretation is binding.

Also, if their lawyer is a friend, or a friend of their dad's or their boss, or whatever, it's very likely that they are not $30K into him at all.

They probably have to pay any court fees (filings, etc), but he could well be doing all the rest for free because they're friends/family/whatever. . . .

To me it appears as if the association has met its match in terms of deep pockets. It may be the best course of action is to drop the suit and eat the association legal expenses. Under no circumstances let association egos get involved in this. You do have a choice.

Keep in mind that if the owner prevails, this will be an extremely costly exercise for the association. Is the potential negative outcome worth the cost. Don't get stuck pursuing something that is not in the best interest of the association.

Perhaps you can negotiate a settlement to allow an exception with a provision that the exception expires when the current owner transfers ownership of the property. (Be sure to file the agreement with the county property recorder to.)

Or you can simply seek to keep the lawsuit alive without actually taking it to court until the owner ends up moving. That could take years, of course, but some lawsuits have be extended for 20 years or more.

>>>From what I know they are paying the legal fees which is really odd. It seems like a lot of money for an above ground pool. They should have put that in to an in ground pool. They are just vindictive at this point. There is nobody on the board that really knows them that well so they can't say we have something personal.<<<

Sidebar.

In my first year Contracts class, during a case breakdown, I raised my hand and asked Prof. C. "Why would somebody spend all this money on such a minor matter?"

To which Prof. C. responded (disdainfully): "Mr. K., stongly-held principles may be pricey to defend, but no price can be placed on them."

That shut me up, tout de suite.

Melissa,

While our docs say the Association can enter a property to remove whatever the violation is I do know I read something saying the association must have a court order from a judge before doing so.

Still disagree with you.

Why? Because you presume that standing firm against stubborn residents is automatically a battle of "egos," when it clearly is not.

Is it a battle of egos when IPL enforces, fines and finally takes to court a homeowner for violating a zoning regulation?

Of course not.

Neither is it such when an HOA enforces, fines, and finally takes to court a resident violating THEIR regulations, which, by the way, the resident agreed to when he/she moved into the development.

I don't recall signing off on Zoning Regulations. . . .

I'm also not intimidated in the least by the implication that there's some huge risk in taking it through the courts.

As with ANY case, there's always some degree of risk of loss. Otherwise, why would it even be going through for a judgment?

But this not an ambiguous restriction.

It's pretty straightforward.

There are way more points in favor of the HOA on a situation like this, especially as the OP stated they can show consistent enforcement of this and other restrictions as well.

And yet, if there were neighborhood agreement to do away with the restriction, then the homeowner spending $30,000 to get around it would have been much smarter, and would have been able to hold on to more of his money, if he had gone the route of changing the restriction instead of simply ignoring it or challenging it.

In our case, a homeowner tried 2 years in a row to change that very same restriction. Our HOA only allows in-ground pools. He put up an above-ground pool.

We enforced against him, he refused to take it down, and we moved along the enforcement spectrum.

We did allow him ample time to go through the governing documents' required steps to amend the CC&Rs, with the philosophy in mind that, yes, if the majority (or the prescribed # in the CC&Rs that allow for amendments and changes) want to now allow above-ground pools, that's what should be done.

However, we did issue our enforcement letters and had a complaint/lawsuit drafted and ready to go should the amendment effort fail.

Guess what?

After a year campaigning for an above-ground pool amendment, it failed miserably. A mere 1 percent of the membership voted FOR the amendment. Seventy-eight percent voted against it. (the others didn't vote at all.)

He still refused. We took it to the wire, and a judge gave him 30 days to remove the pool.

He took it down on the 30th day, and put his lot up for sale at the same time.

He tried again the following year. He got, I believe, something like 3 percent of the votes for it, with in the high 70s against. Again.

We anticipate him to try again. We think he's going to try to bring it up every year hoping that people get tired of voting against it. . .

At any rate, yes, he still lives here and took his For Sale sign down after about 10 months.

I commend you for giving him time to try and change the rules. Unfortunately, many other boards would not give a person such an opportunity. I would say that clearly the people had spoken in your case.

Understand that I don't think all court cases are wrong. I just think that all too often BODs are quick to jump to the court case.

Mike,

Please explain how the "temporary structure" rule can be used to justify banning above ground pools? IMO, the rule stating "An in ground pool can be built" says it all. If the intent was to also allow above ground pools that would also have been mentioned. Just because there is nothing saying you can't do something, doesn't mean it can be done. The h/o's claim that other restrictions are being violated has no merit -- he is only clouding the issue. One member violating a restriction does not give another member the right to do the same. I would hope a judge would agree with this.

George,

I couldn't disagree more. Egos have nothing to do with this. The board is required to enforce their covenants or they are meaningless. The best interest of the association is to represent all owners who purchased thinking they had protections that would keep up the values of their homes. Give in on this and what next? Owners will think they can do whatever with no consequences. If it goes to court and the assocation prevails carry it through to foreclosure. At the least this will show owners they must comply with what they promised when they purchased.

KIRK,

I can assure you our board is not quick to go to court and I assume most don't. Where did you get this info? We have an owner who for over two years let her property get in such disrepair, even appplying tape on her vinyl siding which was falling off, etc (really bad). Needless to say her adjoing townhome owners were more than upset. She jerked us off for over two years saying she would take care of it with no improvement. Our hoa even said we would have it repaired and she could pay monthly to repay the association. Afer all her lies we went the legal route. The association had the repairs done. It cost a little over $6,000 for the repairs but with legal fees it is now over $20,000 and we have a judgment against her for over $20,000 with interst running. Additional leal fees are comning to collect on the judgment. Who do you think won this case?

By the way we went to mediation to avoid a lawsuit but she didn't think it was important enough to be at the mediation process.

I can't answer that except to say that any settlement include the removal of the pool.

A rule saying an inground pool can be built is just that, a rule allowing inground pools, extrapolating further isn't valid. It seems to me that it doesn't address anything further than that UNLESS it says so.

I also think the temporary structure argument isn't 'desperation' but a valid point. Have you allowed temporary structures ie swings etc or just ignored enforcement?

Is this a class war where ingrounds are allowed and above aren't?

Oh, and one last point concerning above grounds being able to be removed...so can ingrounds!

Disclaimer: We have an inground. Just as much noise, and cosmetically, alters the landscape even more than an above ground. Sure, you can't see it as much as an above ground but the rest of the impacts are the same.

Michele, digging a huge hole in the ground vs somthing sitting on the ground (with some surface alteration) is a much larger impact on the landscape. Visually, above ground, I agree the above ground has a greater impact.

There are a number of above ground pools in this area that go into storage during the off season. As for the items holding the pool down, I just haven't seen that here. The water holds the pool quite well.

To be sure, I would consider an above ground pool a temporary structure in the vast majority of cases.

Degree of impact.

Just the logic of ingrounds vs above grounds from an impact perspective. Visually the above ground has greater impact from the pool itself although you still see the handrails etc with either. The pump etc also need to be somewhere. An inground probably has a shed for that which creates its own visual obstruction, whereas aboveground I've seen are usually beside the pool. The above ground may even block the view to that equipment.

Mike, we had to do that, too, in our case against a homeowner with a dog run and two aggressive dogs.

We had to show that we were consistent in our enforcement, whether it was for supposedly "petty" violations, like trash cans not stored out of sight, or non-petty, like commercial vehicle parking.

The HOA does NOT have to "catch" each and every violation. In other words, we do not have to actively inspect and police for violations.

We have adopted a policy of enforcing against every allegation of a violation from the membership.

And we had records to show we did consistently enforce against each and every violation notification that was reported to us and verified as being a legitimate violation.

Which is why I repeat that mantra over and over again on here and in our local HOA leadership workshops.

Mike,

I have heard of court rulings stating just because one member has a basketball pole does not mean the HOA cannot deny yours. Is that what you're saying the court ruling was for your assn?

Our developer/builder/writer of founding documents is DEAD. Back in the 80s, most of the original owners moved/died. FHA came in and foreclosed/owned/rehabbed/sold the units. Most of us owners have owned for 15 years or less, so none of us are original.

What would my association do if a judge really wanted to talk to the person who wrote any of our documents?

Not that it's an issue for my association...more of a cerebral question.

It may be possible that the developer has a few other developments that he built.

You may be able to contact the HOAs in those developments to review their CC&Rs or talk with their boards to see what, if anything, was ever done or ruled or clarified to them with a similar CC&R.

Can't wait to hear!