Help Me Understand this CC&R RE: Pools

I hope this isn't too obtuse but I am trying to gain understanding on a particular CC&R that didn't pass on the Amendments. (FL residential HOA, 41 homes, no PM, 3 BOD)

STATEMENT FROM CC&R's:

POOLS. No above ground pools may be installed on any Lot. All pools must be enclosed by fences or wall on all sides. (the CC&R Amendment was to remove "WALL" and replace with "SCREEN")
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We can't tell if this is a safety statement for drowning or if it's an aesthetics statement like, we don't want to see you in your pool so you must enclose it in a fence or a wall...and maybe it's just not that big of a deal and we can keep going without this amendment at all.

We have three homes with pools and a screen enclosure but no fence or wall.

Do the homeowners who have a screen and no fence/wall now need to get a fence/wall based on the current statement? Is it reasonable to assume that a screen enclosure is, in fact, a wall?

Assuming that, is it now the BOD responsibility to tell the homeowner that according to this CC&R they are in violation of the wall/fence requirement and will need to install a fence or wall to be compliant?

We have a LONG standing history of not enforcing a couple of CC&R's and the attorney says this is a no-go and opens up for selective enforcement on the CC&R's that we do enforce.

We attempted to amend the CC&R to include screens as an option (they are required for safety in the city/county) so that people who elect not to fence in their yard are not obligated to do so. But we can't get the votes. Ironically, these particular homeowners did not vote on the amendments.

You need to figure out what the "intent" was/is for the wall or fence.

Yes, that is the purpose of the screen enclosure, it's meeting a safety requirement or it's just keeping the mosquitos at bay. In my city/county you're required to enclose all pools in a screen with a certain height requirement on the doors or install a pool safety fence to get building approval.

And that's what I'm trying to avoid here is splitting hairs over the term "fence/wall".

If we are OK with the screen enclosure being a "fence/wall" is it just until we are challenged by someone who says it's not?

We are still trying to figure out what is worth chasing an amendment for and what is not.

You say the CCR proposal DIDN't pass, so I would say pools have to be enclosed by a fence or wall, as written. I wouldn't focus on whether this was safety vs. aesthetics - you don't know the intent of the developer who likely wrote it. Aesthetics are subjective anyway, so let's just assume it was written as a safety measure to prevent young kids from getting in the pool and falling in.

As for the people with a screen around the pool (I assume these aren't above ground pools), I would think this CCR was around long enough for them to know they were supposed to get a fence or wall, so the board would be within its rights to tell them to bring the pools into compliance at their expense. If you're one of the three, straighten up and fly right - or be prepared to explain to the board why you didn't get it in the first place. If you're on the board, you and your colleagues will have to decide if you want to grandfather these people in and enforce the rule on new pools, or demand they bring it into compliance. The CCR didn't pass, so if these homeowners want screens, they'll have to work harder on convincing fellow homeowners to push for amending that part of the documents.

"Fence or wall" is about as ambiguous as you can get. Unless those terms are defined in your CC&Rs or in the law, I would consider a screen a fence.

First, I think it is reasonable to surmise that the fence/wall requirement is for safety, as in keeping out wandering kids.

Second, in my opinion "fence" is ambiguous enough to include screening, where the screening accomplishes safety to the same extent a fence does.

Third, and borrowing a bit from how case law thinks about "ambiguities," ambiguous phrases or words should be interpreted in favor of free enjoyment of property.

Fourth, if an owner challenges the board on this and screams: "The screen enclosure is not a fence! I am suing you all for not enforcing the covenant!" Then I vote for the board to respond calmly that the board feels the purpose of the covenant is safety; the word "fence" is ambiguous; the screen accomplishes safety to the same extent (or more than) a fence does; and the board's understanding of ambiguities is that ambiguities are to be interpreted in favor of the lot owner." If the owner is not satisfied, let him/her hire an attorney and threaten suit. Then report back here.

Fifth, get an attorney's opinion.

As the OP is in FL I am assuming the pool screen is a Lanai type screening used to screen porches, decks, patios, pools, etc. She should check what local regulations say before challenging the HOA.

Was the intent to allow Lanai's which are very popular there?

Thanks to all for sharing your insight and opinion on the screen versus fence/wall issue. My condolences to the poster who was affected personally by a family member in a child drowning incident. These tragedies can be mitigated and absent of chasing the rule breakers, we would love everyone to consider safety first.

All of these homes meet city/county safety requirements for pools. The only issue is the CCR says fence/wall and we didn’t know if a screen enclosure qualifies as such. The attorney suggested changing the term wall to screen.

If you folks make another attempt to amend the covenants, then I would change wall and fence to just "barrier compliant with state law, county law, and municipal law." As interested, see FS 515 at http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0500-0599/0515/0515.html

On another note: I realize you are somewhat new here. Welcome to the forum. I have read your posts responding to threads others' started and realize you are either experienced, smart or both. It's good to have you here.

Just to clarify if this isn’t clear, we are at the part where the attorney said here’s what I would change, and he recommended the reference change from wall to screen. He said if you don’t change this you have homeowners in violation and you have to enforce all the CC&R’s. And this is just the first one. There were several CC&R’s that the board overlooked across the neighborhood and I guess it’s not until a Board is enacted that follows the declarations that it becomes a problem.

So nothing has changed, we just have a better understanding of the CC&R about pools and now recognize some homeowners are not in compliance.

But safety is a concern to be considered beyond going to homeowners who built in this development or added pools in a prior BOD time and were either approved or not required to add a fence because of a lax board, ambiguous terms or even total disregard for the declaration.

And this is the first of several, we also have a “No Boats or RV’s visible from the road” and there are at least ten homeowners with a visible boat/RV or even both. Again, we tried to amend the CC&R to allow boats/RV’s provided they were behind a 6’ privacy fence. But we didn’t get the votes. So here we are, with CC&R’s to enforce, homeowners who have been allowed to skirt the CC&R and a board feeling conflicted. We, as a board, agree we are OK with boats behind a fence and the community obliges that. But it is wrong and it opens up for a homeowner to cry selective enforcement.

I just don’t know if this stuff is worth it, I mean, it’s been going fine just the way it is. We haven’t had a homeowner with a problem about a fence around their screened pool and we haven’t had a homeowner come forward with a problem about a boat/RV. I’m just wondering if the board and the homeowners have been ok with things the way they were, why are we fine tooth combing our CC&R’s to enforce violations? I wonder if we can’t just go status quo until someone raises their hand and says, my neighbor has a screen enclosure and it’s not fenced in and I have a two year old and I’m concerned. Or another says my neighbor has an unsightly RV and I want it out in accordance with the CC&R’s.

This is helpful for a future attempt to amend and YES we are going to go back again and try again. I want to include a little more education about the amendments and what each change means for the homeowner. I think if we had a little more education we might get a little less apathy.

We got 19 out of 28 needed which was a record turnout. We just have to come together again and educate more and try to net some of these violations as votes, because my three homeowners who are in violation didn’t even show up to vote on an amendment that affected them personally.

And thank you! I’m probably a little smart and a little experienced. HA!

Apologies for the multiple posts! I see the server can be some-what lagging!

First, it is reasonable to assume the first as well, when I moved in this neighborhood in 2018 I assumed by driving around that boats/RV’s were acceptable because 25% of the homes have a boat/RV visible.

I do understand the selective enforcement of the same rule among two homeowners but in reading posts on this forum it seems that when a disgruntled homeowner is violated for a CC&R they list out the myriad of other violations in the community as leverage for their violation. Like, a homeowner gets a violation for a BBALL goal and that homeowner says, hey they’re not supposed to be street parking and I see people do that all the time.

But it is helpful to consider that possibly some CC&R’s have been abandoned and someone complains we can address it at that juncture rather than stirring up a bee’s nest of what now amounts to be 13 homeowners in violation of one or two CC&R’s that have essentially been abandoned.