Posted:
You posted this twice, so I'll answer here.
It seems to me the homeowners who put this stuff up should have been required to maintain it because deteriorating equipment isn't pretty to look at. If appearances doesn't matter to them, they should be aware that if a child were to play on this stuff and get injured, the HOMEOWNER, not the association would be liable.
You are now seeing the problem with failure to enforce CCRs. Once you set that precedent, it's difficult to turn things around - if this were to go to court, a judge could easily say "well, you guys didn't enforce the rule to begin with, so why are you upset because the stuff is now falling apart?" What you should have done is enforce the rule and decide at that point if you wanted to grant a waiver and under what circumstances. Homeowners could have also petitioned the board to amend that portion of the CCRs to allow the equipment, and then the board could have consulted the association attorney regarding drafting an amendment and homeowners could vote for approval according to the procedures listed in the CCRs. Which may have avoided what you have now.
This is also why I think the Board, NOT advisory committees, should oversee CCR enforcement. It's ok for the committee to recommend changes in standards or what type of disciplinary action should be taken, but I wouldn't put it in charge of enforcing the CCRs themselves - either give that to some sort of rules enforcement committee or file an appeal directly with the board, who would have the final say (unless the issue went to a court and a judge ruled otherwise).
Having said that, not enforcing the CCRs in the past doesn't necessarily mean you're SOL. I would start with sending a letter to these homeowners with the following points:
(1) section X of the CCRs prohibits structures from being built on the property. The CCRs exist to ensure the community maintains a certain look established when it was built. This can ensure property values remain high, which benefit everyone
(2) a number of homeowners installed play equipment without prior approval and today, there are swing sets, trampolines, etc. that have been allowed to fall into disrepair. Homeowners are responsible to maintain these items and not only does this make the community unattractive, but they, not the association, risk being held liable if a child were to play on the equipment and get injured from using it.
(3) we acknowlege the board of directors and the design review committee have not enforced section X with respect to play equipment, but effective immediately we will begin doing so. This means no new installation of playground equpipment will be permitted. We will not allow waivers of this section of the section of the CCRs without a formal hearing before the design review committee. The committee will make a recommendation to the board to approve or disapprove the request. Homeowners who install equipment without a waiver will be required to take it down at their expense and refusal to do so will result in a fine of $ and possible legal action at the board's discretion.
(4) If you already have playground equipment, you are expected to inspect it and make necessary repairs or removing it at your expense. If you make the repairs, you will be allowed to keep the equipment until the house is sold or transferred, at which time you or the new owner must remove it at your expense.
(5) Homeowners have until X date to comply. If you fail to do so, you will receive a formal violation notice and be subject to further sanctions.
(6) If you have any questions, please notify the board.
I suspect many people will go ahead and take this stuff down if it's not being used, so that could be the end of it. If people squawk, suggest they petition the BOARD about making a change to the CCRs and go on from there.
If it is not right do not do it; if it is not true do not say it. Marcus Aurelius