HOA overstepping CCRs

Started by JohnM93 • 62 replies • 1441 views

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JohnM93 (Ohio)
Posts: 57

Posted:

I am building a new home in a neighborhood with vague CCRs. There are some explicit statements but when it comes to design they are vague.

So my general question, can the HOA enforce something not called out in the CCRs?

Example 1 - satellite dishes must be at the back of the property - I am putting up a TV antenna with a mast mounted to the soffit on the side of the house. The word antenna never appears in the CCRs. And yes, I know the FCC has basically said I can put an antenna however I want, but the HOA is trying to use the other FCC clauses to justify their push back on my antenna

Example 2 - when building the house, we were told we had to much brick - there are all brick homes in the neighborhood and the CCRs only mandate brick, stone, wood or concrete siding.

Example 3 - we were also told that we had to much gray color, but there are homes that are single color, and there are no colors mentioned in the CCRs. We were also told our door could not be red, again no colors in the CCRs other then roof must be black, gray or tan, but not white.

Example 4 - landscape requirement is to submit plans that "at a minimum" show landscaping for front foundation - the HOA wants plans that include much more than this, and wants to critique my choices although the neighborhood is full of the same plants I want.

So if the CCRs don't prohibit TV antennas or specify their location, and the CCRs don't contain color specifics or landscape requirements other than to submit a drawing - what can the HOA say about my landscape plans and tv antenna?

To me it feels like the HOA president wants to pick apart anything he doesn't like.

I can only find vague references online to HOAs not being able to enforce things not in the CCRs, but can they fall back on "harmony" or other vague terms to try to reject my designs?

Thanks!

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Yes they can. CC&R's and by-laws are really "outlines". Outlines of which the rest of the owners/HOA work within.

No colors are NOT going to be spelled out in detail. Usually there is an Architectural Committee in place that makes those decisions. They have a color swatches of approved colors. If there is not an ACC then the HOA board or Developer acts as one. Our HOA had a color "wheel" of approved colors. We also had a post at the front entrance of approved vinyl siding colors. (Our houses not brick).

As for "too much brick" that is possible. Brick is actually a "veneer" product. It is not structural. It's held on by little metal straps to the house structure. All in all it's an appearance thing. Which exterior appearances is under HOA control. Some neighborhoods require that ONLY the fronts of the homes are brick. Maybe the sides are brick but the rest must be wood/vinyl. It's more of an aesthetic thing to incorporate more "matchy matchy". So yes there is such a thing as "too much brick" when you applying over the entire home. I just finished building a brick house myself. The gable areas are vinyl. Some houses even have fake windows. It's just the style of the house.

I don't have cable TV nor satellite. I just use the attenna on my TV. Have not had an issue with tuning in many channels. Plus my cable is ran into the house just like the electricity. So there are no worries about potential "eyesores" an attenna or dish could be considered.

Former HOA President

JohnM93 (Ohio)
Posts: 57

Posted:

Thanks for the reply, maybe I wasn't clear.

There is no Arch committee the HOA board is acting as both. There are no color swatches, or any color requirements anywhere. We have brick, stone, sided houses - one is blue. No vinyl is allowed though. And if colors are not spelled out, and there is no list of approved colors or even terms like "earth tones" - who gets to decide?

As for brick, we have all brick homes in the neighborhood, so why is my all brick home not acceptable and 4 others were allowed - there is no structural issue and no requirements on % of brick, siding or stone.

As for the antenna, the FCC has mandated that HOAs have little to no authority in this matter. Not all of us live close enough for an inside antenna to work well.

SheliaH (Indiana)
Posts: 6,964

Posted:

The first thing to remember about CCRs is that they're usually written to the developer's benefit and they pretty much run things however get want until the community is turned over to the homeowners. they don't always get updated at that point so stuff like this happens.

You should already know if your community is still under the developer's control, so that's the first thing you need to determine. Go get your sales documents and see what they say. If so you may have to comply with whatever they want, whether you think it makes sense or not.

If the community is under homeowner control, the next thing you need to understand is that CCRs don't always specify everything that will happen in HOA land. if they did, they'd probably be the size of this encyclopedia Britannia and no one would read them (most folks already ignore them). Times change and the makeup and Mike of the community also changes, so the things that the original owners obsessed about may not be as important to the new group of homeowners.

The bylaws (the papers that dictate how the community is run) may have language that gives the board the authority to establish additional rules as long as they don't supersede the CcRs. For example, the CCRs may say something like houses can only be painted colors approved by the board and the rules may specify what colors are accepted.

The board should review the rules from time to time to see what needs to be tweaked or dropped or if something should be added. Ideally, the board asks homeowners for their comments and suggeztions, so when the rules are passed, homeowners would have based some say and I perhaps more likely to comply with them.

You may be running up against various forms of tbis, so if the board has some sort of appeals process for exterior changes, apply for one and make your case perhaps showing photos of what others have and how they're similar to what you want to do. I'd skip the nonsense about "too much brick" - what does that even mean? Better yet, during your apoeal, ask the board to explain that.

Incidentally, the FCC rules on tv dishes say a HOA can't stop you from having a dish, but it can enact reasonable rules on placement, as long as those rules don't prevent you from having the dish at all or result in you spending more money to have it. They may be well within their rights to require you to put the dish in the bqckyard, so unless that prevents you from getting any signal or a very poor one, put the thing in the backyard. The tv provider may be familiar with your association and will already know how to make it work.

Finally, remember the HOA president is only ONE vote. He or she may have opinions, but decisions have to be made by the entire board. You didn't say how you know the president is driving all this anyway, so focused on selling your designs to the majority. Hopefully, there will be enough who think for themselves and will agree with you.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

AugustinD
Posts: 3,698

Posted:

JohmM93, is your HOA still under declarant control?

You are correct that Board-created rules and guidelines cannot be more limiting than the covenants. You can start by writing a letter stating your understanding is the covenants are contractual terms, and that you understand Board-created rules and guidelines cannot be more limiting than the covenants. Also request that the HOA board consider checking with the HOA attorney about how it is trying to limit certain aspects of what you are doing.

Do review thoroughly what the FCC says you can do. I am not sure you are 100% in the right regarding the antenna.

JohnM93 (Ohio)
Posts: 57

Posted:

Quote:

Posted By JohnM93 on 09/08/2021 3:54 PM
Thanks for the reply, maybe I wasn't clear.

There is no Arch committee the HOA board is acting as both. There are no color swatches, or any color requirements anywhere. We have brick, stone, sided houses - one is blue. No vinyl is allowed though. And if colors are not spelled out, and there is no list of approved colors or even terms like "earth tones" - who gets to decide?

As for brick, we have all brick homes in the neighborhood, so why is my all brick home not acceptable and 4 others were allowed - there is no structural issue and no requirements on % of brick, siding or stone.

As for the antenna, the FCC has mandated that HOAs have little to no authority in this matter. Not all of us live close enough for an inside antenna to work well.

This article, by a lawyer, indicates that if it is not in the CCRs, than an HOA can't dictate color https://rismedia.com/2021/05/12/can-hoa-force-me-paint-house-color-they-chose/

Also, FCC saying HOAs can't restrict antennas:
https://www.fcc.gov/media/over-air-reception-devices-rule

But back to the original question

If it is not written anywhere, can it be enforced? If there are NO CCRs, bylaws, anything written that prohibit or require a color or detail, can the HOA tell a homeowner they have to comply?

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By JohnM93 on 09/08/2021 3:58 PM

If it is not written anywhere, can it be enforced? If there are NO CCRs,

Trust this forum: There are CCRs.

What else is there that is written down that the HOA Board is using to tell you you cannot do (this and that)?

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By JohnM93 on 09/08/2021 3:58 PM

Also, FCC saying HOAs can't restrict antennas:
https://www.fcc.gov/media/over-air-reception-devices-rule

No, that's not what this site or the FCC say. For one thing, this site says:

"Some communities have written restrictions that provide a prioritized list of placement preferences so that residents can see where the association wants them to install the antenna. The residents should comply with the placement preferences provided the preferred placement does not impose unreasonable delay or expense or preclude reception of an acceptable quality signal."

Like almost anyone in your shoes, I think you need to pay an attorney for a consultation. Why? Because you are biased towards your own interests. You are not able to make an objective legal argument for your circumstances.

People here can help you. But since no one here is an attorney, there's a good chance you will fight with people here, failing to present the full picture of the law and the facts. Whence the advice here won't have much value.

An attorney will demand the facts; scan the governing documents and all the law; and give you the reality of your battle (the bad and hopefully, some good).

JohnM93 (Ohio)
Posts: 57

Posted:

The HOA is controlled by the residents for the past 2 years. There are no other documents other than the CCRs. It is a single family community (1+ acre lots) and the developer also created the neighborhood I am moving from - same exact CCRs other than a name change.

The developer didn't push back on home design as long as it met square footage and materials - we have ultra modern, and traditional style and all in between.

The new neighborhood is much smaller and the HOA president thinks he can approve or not house styles based on his likes and dislikes.

As for antennas - I have researched this for years - most HOAs have lost their cases regarding dish or antenna restrictions for 20+ years now.

The only restriction we have is that "satellite dishes must be placed at the rear of the property and screened from view" - i suspect this is referring to old style large satellite dishes and not the 1 meters direct broadcast dishes. I am talking about a basic tv antenna.

JohnM93 (Ohio)
Posts: 57

Posted:

As I mentioned before there is no word Antenna anywhere in the CCRs.

So if something is not mentioned, can the HOA try to enforce it?

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By JohnM93 on 09/08/2021 4:23 PM
As I mentioned before there is no word Antenna anywhere in the CCRs.

So if something is not mentioned, can the HOA try to enforce it?

Based on all that you have written, I do not trust that you are accurately interpreting "not mentioned." For example, by any chance do your CC&Rs say anything about structures placed on a lot requiring advance approval?

If you want substantive help here, in preparation for meeting with an attorney, then redact HOA-identifying information from the CCRs and attach them here as a pdf.

If you did anything that arguably requires advance approval from the HOA, then this was a mistake and hurts your position.

JohnM93 (Ohio)
Posts: 57

Posted:

Ok, so let’s skip the tv antenna, although how is it different from a weather station, security camera or security light that is never scrutinized, I don’t know. Out only prohibition is on roof attachments of anything. I think of a structure as a building.

But we also have to submit a landscape plan. Again, the only details in the CCRs are that it include the front of the house at a minimum. There are no other requirements other than 3 trees and x pounds of seed per square foot or sod. The developer never enforced the landscape plan in the past (most people never submitted one) but we will.

If the HoA president treats us like he did with house plans he will have numerous demands. Again, no other documents, and no requirements, other than it be submitted and approved. What is a design review committee judging on if the CCRs have no requirements. The opening paragraph mentions harmony, but that is it.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By JohnM93 on 09/08/2021 4:49 PM
Ok, so let’s skip the tv antenna, although how is it different from a weather station, security camera or security light that is never scrutinized, I don’t know. Out only prohibition is on roof attachments of anything. I think of a structure as a building.

Stop thinking. Post your CCRs. Then who knows? Once I see the CCRs, then I for one may agree with you on everything.

You came here because you want those with experience in HOAs to opine, right? Just about everyone's experience here comes down to, "It depends on what all of the CCRs say."

Else you have my opinion that your basic premise is correct. I am just not at all convinced you are applying the premise correctly to the facts.

JohnM93 (Ohio)
Posts: 57

Posted:

Yeah ok, just posting before seeing your reply. Let me see if I can remove a couple pages and post it.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By JohnM93 on 09/08/2021 5:00 PM
Yeah ok, just posting before seeing your reply. Let me see if I can remove a couple pages and post it.

Post all of the Declaration, even if you have to submit a few posts to do this.

The site has a byte limit of 200 or something per post.

JohnM93 (Ohio)
Posts: 57

Posted:

So here is CCRs and design standards from current neighborhood - 99% verbatim of HOAs i am dealing with for new house

📎 Attachments (1):

⏸ Downloads temporarily unavailable

📄198462254771.pdf(992 KB)

JohnM93 (Ohio)
Posts: 57

Posted:

and design standards

📎 Attachments (1):

⏸ Downloads temporarily unavailable

📄19850020854.pdf(1004 KB)

AugustinD
Posts: 3,698

Posted:

JohnM93, thank you.

Was Exhibit B intended to be Exhibit A, as referenced in CCR 11.16?

My thoughts for now:

Example 1 - satellite dishes must be at the back of the property - I am putting up a TV antenna with a mast mounted to the soffit on the side of the house.

Pursuant to CCR 11.01, I think the HOA is reasonable in requiring that you apply for approval of this.

Example 2 - when building the house, we were told we had to much brick - there are all brick homes in the neighborhood and the CCRs only mandate brick, stone, wood or concrete siding.

Example 3 - we were also told that we had to much gray color, but there are homes that are single color, and there are no colors mentioned in the CCRs. We were also told our door could not be red, again no colors in the CCRs other then roof must be black, gray or tan, but not white.

Example 4 - landscape requirement is to submit plans that "at a minimum" show landscaping for front foundation - the HOA wants plans that include much more than this, and wants to critique my choices although the neighborhood is full of the same plants I want.

Pursuant to CCR 11.05, were the plans submitted and approved by the HOA in advance of beginning construction? Talk to me (and the forum).

Assuming Exhibit B is really Exhibit A, then I believe the only phrase that is controlling is CCR 11.01's "approved... as to harmony of external design... " . Two observations on this phrase, based in part on a lot of reading of HOA architectural case law.

(1) I consider this phrase vague and ambiguous. If a court agreed, then per long-established precedent, the phrase would be interpreted against the HOA and in favor of free enjoyment of land.

(2) Where a Declaration gives a HOA (or Board or Arch Committee) discretion, this discretion must be exercised reasonably. This HOA has no written-down guidelines. Nor does the Declaration even speak of providing guidelines (which to me, is p. In my opinion, for the HOA to simply tell you in a letter whatever its requirements (frankly) du jour are borders on caprice. I think this approach is unreasonable.

(3) Arguably the HOA Board is exceeding the authority granted it by the Declaration. This could be an act of Ultra Vires (and so punishable one way or another).

Consider reading the following. I think the court case in particular may help a bit.

https://www.courtlistener.com/opinion/4746716/sander-v-country-brook-homeowners-assn-inc/ (The HOA lost on appeal. I do not know if a further appeal to the Ohio Supreme Court was made.)

The Ohio HOA statute appears here:
https://codes.ohio.gov/ohio-revised-code/chapter-5312

Section 5312.06 and Section 5312.13 arguably come into play here, and somewhat in your favor.

AugustinD
Posts: 3,698

Posted:

-- Sorry about the lousy formatting above. All the points I wanted to make for now are there.

-- Your situation is a fine example of the risks a person assumes when buying into a HOA. Regulate, and regulate some more. On the other hand, the courts say that Declarations on record with the County Clerk count as legal notice that, when you bought this house, you knew what the contract (the covenants) said. "A deal's a deal." On the third hand, this means the HOA has an end of the deal to keep up as well.

-- I think one of the bigger questions is: How much money and time do you want to give to fighting this? A 'just the facts' letter by you might get some cooperation from the HOA. But I think the better alternative (for a person buying into a subdivision with one acre lots) is to spend up to a few thousand dollars (and possibly only a few hundred dollars) on a HOA-specialized attorney to write a letter explaining where the HOA is out of line. Such a letter might get you what you want, especially with the ink still wet on a certain recent appeals court decision. The latter battle, if at last over, could not have been cheap.

-- Watch for others' thoughts here. This forum sees this sort of thing often.

-- Do not underestimate the importance of applying for approval in advance, as the CCRs direct.

JohnM93 (Ohio)
Posts: 57

Posted:

Yeah sorry, meant to submit A - very familiar with the case and how much was spent on legal fees. Check out the latest on arnold ziffle the pot bellied pig...

Yes we submitted plans for the house and they were approved after 2 weeks of back and forth and us refusing to change anything.

I will post A as soon as i can get it small enough

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By JohnM93 on 09/08/2021 7:48 PM
Yeah sorry, meant to submit A - very familiar with the case and how much was spent on legal fees. Check out the latest on arnold ziffle the pot bellied pig...

I hope you understand that what I linked is not about the pig. Though I believe Ohio Arnold has come up here at hoatalk.com in the last year or so.

JohnM93 (Ohio)
Posts: 57

Posted:

Par1 of design reqs

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📄198564781871.pdf(1000 KB)

JohnM93 (Ohio)
Posts: 57

Posted:

part 2 and 3 of design reqs

📎 Attachments (2):

⏸ Downloads temporarily unavailable

📄19859436871.pdf(1011 KB)

📄19859444654.pdf(521 KB)

JohnM93 (Ohio)
Posts: 57

Posted:

Quote:

Posted By AugustinD on 09/08/2021 7:52 PM
Posted By JohnM93 on 09/08/2021 7:48 PM
Yeah sorry, meant to submit A - very familiar with the case and how much was spent on legal fees. Check out the latest on arnold ziffle the pot bellied pig...

I hope you understand that what I linked is not about the pig. Though I believe Ohio Arnold has come up here at hoatalk.com in the last year or so.

Yes, we are familiar with the solar panel issue too - we supported the pig at first, but not now as the lawsuit is continuing in federal court

JohnM93 (Ohio)
Posts: 57

Posted:

And I do appreciate your opinion - I know we are not lawyers.

I had originally called the developer (declarant) when I first got pushback on house design - prairie style and other prairie style homes in the neighborhood. The developer (of about 5 different subdivisions) told me that there are many house designs he hated, but if they didn't violate the basic CCRs, they got approved. He is no longer part of the HOA as he turned it over - a difficult guy when he was in charge, but he treated everyone equally with contempt

We seem to have a ego leading the HOA board that wants his design ideas to win out

KellyM3 (North Carolina)
Posts: 2,239

Posted:

You may be making a personal mistake moving into a HOA-protected neighborhood, to be honest. While you'll likely earn some "wins" here, you won't win everything on the list.

Haggle over the brick content or ask them what the ratio should be...if they know to say "no," they should know this. Same with the paint and door color choices. Are you building a house that's aesthetically misaligned with the appearance of the homes in your community?

The landscape plan submission certainly should be expected and you should follow this one. It's fair.

As far as the antenna, the HOA can't prevent you from having an antenna but can regulate placement in the reasonable sense.

I'd give on the landscape and move the antenna....and push back on the brick and paint choice unless I'm missing something. Once things turn a bit petty, communication devolves.

JohnM93 (Ohio)
Posts: 57

Posted:

Quote:

Posted By AugustinD on 09/08/2021 7:47 PM
-- Sorry about the lousy formatting above. All the points I wanted to make for now are there.

-- Your situation is a fine example of the risks a person assumes when buying into a HOA. Regulate, and regulate some more. On the other hand, the courts say that Declarations on record with the County Clerk count as legal notice that, when you bought this house, you knew what the contract (the covenants) said. "A deal's a deal." On the third hand, this means the HOA has an end of the deal to keep up as well.

-- I think one of the bigger questions is: How much money and time do you want to give to fighting this? A 'just the facts' letter by you might get some cooperation from the HOA. But I think the better alternative (for a person buying into a subdivision with one acre lots) is to spend up to a few thousand dollars (and possibly only a few hundred dollars) on a HOA-specialized attorney to write a letter explaining where the HOA is out of line. Such a letter might get you what you want, especially with the ink still wet on a certain recent appeals court decision. The latter battle, if at last over, could not have been cheap.

-- Watch for others' thoughts here. This forum sees this sort of thing often.

-- Do not underestimate the importance of applying for approval in advance, as the CCRs direct.

One final point - when we bought the lot, it had not had its first board meeting with the NEW board - so we made the assumption that since the CCRs were the same, and we built a house under the same developer, that we knew what we were getting into.

The developer didn't even bother to enforce the landscape plan submittal as long as you landscaped in a timely manner, and the house designs were approved if they met the basic requirements - we thought the same rules, would be interpreted the same way - then the HOA got turned over just before we submitted plans.

AugustinD
Posts: 3,698

Posted:

-- CCR 13.4 may be relevant for the antenna. At a minimum, you should apply for approval of the antenna. The HOA has to be reasonable about approving or disapproving the antenna. The HOA cannot flat out prohibit it.

-- Regarding the landscaping plan: If the HOA (again?) is seeking some unknown, not written-down, uniform standard beyond the exact specifications in CCR 13.1 and CCR 13.2, then I believe this is not appropriate.

-- Hire the attorney. Ask about the three points I raised above. Stay humble, of course. The attorney knows a lot more about the law of course and how to formulate a letter to the HOA that will be compelling. Do mention the recent litigation.

JohnM93 (Ohio)
Posts: 57

Posted:

Quote:

Posted By KellyM3 on 09/08/2021 8:06 PM
You may be making a personal mistake moving into a HOA-protected neighborhood, to be honest. While you'll likely earn some "wins" here, you won't win everything on the list.

Haggle over the brick content or ask them what the ratio should be...if they know to say "no," they should know this. Same with the paint and door color choices. Are you building a house that's aesthetically misaligned with the appearance of the homes in your community?

The landscape plan submission certainly should be expected and you should follow this one. It's fair.

As far as the antenna, the HOA can't prevent you from having an antenna but can regulate placement in the reasonable sense.

I'd give on the landscape and move the antenna....and push back on the brick and paint choice unless I'm missing something. Once things turn a bit petty, communication devolves.

We stuck to our guns and won the brick and color selection battle - we have a band of limestone that runs across the house - nothing is out of ordinary when compared to many other custom homes in the neighborhood - the hoa president insisted we add the landscape walls to the blueprints, now he is upset that they are not planters and wants to know what keeps the dirt in the sides. We were after a Frank Lloyd Wright style.. but he was concerned the sides of the house may need landscaping so the neighbors would not have to look at all our brick.

Their house is built, and that side of our house faces their garage, and a wall of brick.

The issue i have, is that the CCRs have no requirements for what should be in the landscape plan.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By AugustinD on 09/08/2021 8:13 PM
-- CCR 13.4 may be relevant for the antenna.

Oops. I meant Exhibit A, section 13.4.

Helluva set of standards. Depressing even. I trust this subdivision is appealing in other ways (good schools et cetera).

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By JohnM93 on 09/08/2021 8:07 PM

One final point - when we bought the lot, it had not had its first board meeting with the NEW board - so we made the assumption that since the CCRs were the same, and we built a house under the same developer, that we knew what we were getting into.

The developer didn't even bother to enforce the landscape plan submittal as long as you landscaped in a timely manner, and the house designs were approved if they met the basic requirements - we thought the same rules, would be interpreted the same way - then the HOA got turned over just before we submitted plans.

For the purposes of something like moral support, I understand. But I advise starting now to separate the wheat from the chaff when you communicate with the HOA and with an attorney. The above is not relevant. All that matters is the covenants (with attached exhibits); whether you are complying with them; and whether the board is complying with them.

JohnM93 (Ohio)
Posts: 57

Posted:

I have never seen the swing set standard enforced.

As for the antenna mast, they don’t like that it is on my garage side and towards the front of the house, but moving it back will likely affect signal reception.

If they had an existing rule I would have attempted to comply, but the CCRs only mention satellite dishes, and the fcc site says they can’t force DBS dishes to be placed where they can’t get reception. I suspect the satellite dish in the CCRs is referring to the large old school type.

JohnM93 (Ohio)
Posts: 57

Posted:

And my only problem with interpreting 11.01as you did, is then what constitutes an exterior alteration? Adding a flood light? Security cameras? Christmas lights? Anything else that can be attached to a soffit like a rain gauge or weather station?

JohnM93 (Ohio)
Posts: 57

Posted:

I found this interesting article by a law firm - it has good details on single family dwellings too.

They clearly state that an HOA can’t require an approval process for tv antennas, and if they want to try to enforce location of antennas it must be predefined and can’t be retroactively added.

https://altitude.law/resources/newsletter/fccs-rule-satellite-dishes-and-other-antennas/

I know it is one interpretation that fits my viewpoint, but it is at least a start.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Here is another article by an Ohio law firm specializing in HOAs and COAs:

https://ohiocondolaw.com/article/satellite-dishes-what-can-an-association-regulate/

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By JohnM93 on 09/08/2021 8:15 PM
We stuck to our guns and won the brick and color selection battle

I think this should have been in the first post here. I think it's yet another reason that you need an attorney. Having to pay is incentive to set aside what is irrelevant.

BenA2 (Texas)
Posts: 1,273

Posted:

The CC&Rs are the rules and the HOA cannot enforce something that is not in the CC&Rs (at least not on your private property). Some people believe they can just reinterpret the CC&Rs and put the interpretation in the guidelines, but that is not true. Most CC&Rs are specific about what it takes to make changes (usually a majority or supermajority of owners have to consent to any amendments).

In my opinion, if your CC&Rs only mention satellite dishes, then a regular TV antenna is not included and your HOA is overstepping their authority. If your CC&Rs are specific, then follow the CC&Rs.

The question of ambiguous CC&Rs depends on where you live. In my state, for example, ambiguous CC&Rs must be interpreted in favor of the homeowner. They are essentially, unenforceable. However, in some states the courts give HOAs much more latitude in interpreting CC&Rs. In may come down to what courts in your county have ruled.

There is a school of thought that you should just submit to the HOA because it is easier and you can always just move to a place more suitable to you, but my philosophy is that the CC&Rs are a contract that both you and the HOA are bound by. They don't get to change it at will anymore than you do.

AugustinD
Posts: 3,698

Posted:

I posted above, "Pursuant to CCR 11.01, I think the HOA is reasonable in requiring that you apply for approval of [the antenna]." This is wrong.

JohnM93's and CathyA3's links both have law firm statements like "The FCC has determined that prior approval would cause an “unreasonable delay.” I think the following are cite-able authorities for statements like these law firms':

FCC 03-2971 Memorandum and Order, September 2003 (specifically addressing a certain HOA's procedures)
A prior approval requirement constitutes an unreasonable delay and is therefore impermissible unless it is necessary for bona fide safety or historic preservation considerations.

FCC 03-210 Memorandum and Order, August 2003 (specifically addressing another HOA's procedures)
Under [the FCC's] rule, a prior approval requirement will only be enforceable if it is necessary to accomplish a legitimate safety or historic preservation objective and is no more burdensome than necessary to accomplish that objective.

In both of these FCC decisions, the ever un-helpful Community Associations Institute (CAI) entered the fray. The CAI fought for HOAs having the right to restrict antennae. The CAI was unsuccessful. E.g.:

CAI challenges the [FCC subagency’s] finding, stating that it has effectively converted a prohibition on unreasonable delay or expense to a prohibition on any delay or expense.

The FCC told CAI to go fly a kite. The restrictions of the HOAs in question did not pertain to safety or historic preservation, so the FCC said the HOA's restrictions, including pre-approval, were not allowed.

JohnM93, you will need an attorney to put the above (or similar) into a paragraph of a concise, compelling, snark-free letter. Or sure, draft your own and I am sure readers like me will be happy to edit it. 100 word limit for the body of the letter.

For the actual FCC Memoranda and Opinions, see attachments.

📎 Attachments (2):

⏸ Downloads temporarily unavailable

📄199314465371.pdf(139 KB)

📄199314474654.pdf(94 KB)

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By BenA2 on 09/09/2021 7:11 AM
The question of ambiguous CC&Rs depends on where you live. In my state, for example, ambiguous CC&Rs must be interpreted in favor of the homeowner.

By my reading, including recognized, authoritative summaries of the case law nationwide, the above is the legal rule nationwide. It comes from general contract law: Bona fide (meaning court-confirmed) ambiguities are interpreted against the drafter of the contract. For HOA/COA cases, the drafter is considered to be the Declarant or the HOA/COA corporation.

The problem is that the nuance of a case that concerns an alleged ambiguity can be debated by well-heeled attorneys, trial court judges, and appeals courts at length, costing the plaintiffs and defendants a fortune. It's true one never knows what a trial court will decide. Some judges at the trial court level are weak on HOA and covenant law. (I base the latter arrogant/confident statement on reading appeals court decisions that summarize the trial court decision, rolling my eyes, and having a high probability of being able to correctly predict what the appeals court would say. Yada yada.) That's about a year or more wasted on a trial court decision. Add another year or more to the time it takes to get to the appeals court. Figure around $100,000 in attorney fees per side, per court (trial court and appeals court).

JohnM93 (Ohio)
Posts: 57

Posted:

Thanks all, the only other question I have then is in regards to the requirements for a landscape plan, yes we are submitting one and paying the fee.

But as there are no other design requirements - other then a required 3 certain size trees, and the plan to show landscaping of the front foundation at a minimum (I am paraphrasing) - what would your expectations be when a board says:

- you need bushes over there screening your driveway, or more bushes on the side of your house, taller, shorter, etc.

This is similar to the home design discussion we had that the HOA president has already alluded too - saying "we will ask for more landscaping on your brick side"

Based on everyone's experience what is the HOA boards ability to dictate landscape requirements that are not defined anywhere?

Just to be clear, we plan on doing what others houses have done - we are not trying to cheap out, or do the minimum, but we don't want to be forced to do things that are not to our liking.

If they don't approve the plan, then we will likely talk to a lawyer.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By AugustinD on 09/09/2021 7:31 AM
I posted above, "Pursuant to CCR 11.01, I think the HOA is reasonable in requiring that you apply for approval of [the antenna]." This is wrong.

JohnM93's and CathyA3's links both have law firm statements like "The FCC has determined that prior approval would cause an “unreasonable delay.” I think the following are cite-able authorities for statements like these law firms':

FCC 03-2971 Memorandum and Order, September 2003 (specifically addressing a certain HOA's procedures)
A prior approval requirement constitutes an unreasonable delay and is therefore impermissible unless it is necessary for bona fide safety or historic preservation considerations. ... snip ...

One caveat for the record. The statement in bold may be true for HOAs, but not COAs (according to our attorney).

In condo communities, satellite dishes need to be installed on common elements by definition, giving the association the right to require pre-approval and the right to make reasonable rules regarding size, number, placement and screening. The "unreasonable delay" in this case applies to formal approval by the association once the request is received - the board can't sit on it for a few months while they consider. Having a written policy and a request form that contains a checklist with the requirements makes things go faster.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By JohnM93 on 09/09/2021 8:05 AM
what would your expectations be when a board says:

- you need bushes over there screening your driveway, or more bushes on the side of your house, taller, shorter, etc.

This is similar to the home design discussion we had that the HOA president has already alluded too - saying "we will ask for more landscaping on your brick side"

I would write the following to the board and send it certified mail, return receipt requested (for legal documentation purposes).

Dear Board of Directors,

In the Board's communication dated _____, the Board directs that I place bushes at ____ and at ____.

Pursuant to the Design Standards attached to the CCRs as Exhibit A, part 13.1, "The Design Review Committee will review minimum requirements for landscaping." CCRs Exhibit A, part 13.2 delineates these minimum requirements. Nowhere does CCR Exhibit A part 13.2 speak of bushes.

My understanding is that the CCRs are a contract. Neither the Board nor the Design Review Committee may create rules that exceed the authority of the CCRs.

I do not wish to put bushes in the places that the Board directs, and with the Board lacking authority from the covenants to give direction on the placement of bushes in its review of my home's landscaping plan.

Respectfully, would you please review my submitted landscape plan pursuant to the CCRs, and only the CCRs, and so omitting any direction on the placement of bushes?

Thank you,

John ____
address
phone
email addie

One other thing: if the President is making all the decisions here and without a vote of the Board or the HOA's Design Review Committee, then he is going to get in trouble, very much like the recent lawsuit described in the appeals court decision I linked above (pertaining specifically to the OP's HOA).

JohnM93 (Ohio)
Posts: 57

Posted:

Quote:

Posted By JohnM93 on 09/09/2021 8:05 AM
Thanks all, the only other question I have then is in regards to the requirements for a landscape plan, yes we are submitting one and paying the fee.

But as there are no other design requirements - other then a required 3 certain size trees, and the plan to show landscaping of the front foundation at a minimum (I am paraphrasing) - what would your expectations be when a board says:

- you need bushes over there screening your driveway, or more bushes on the side of your house, taller, shorter, etc.

This is similar to the home design discussion we had that the HOA president has already alluded too - saying "we will ask for more landscaping on your brick side"

Based on everyone's experience what is the HOA boards ability to dictate landscape requirements that are not defined anywhere?

Just to be clear, we plan on doing what others houses have done - we are not trying to cheap out, or do the minimum, but we don't want to be forced to do things that are not to our liking.

If they don't approve the plan, then we will likely talk to a lawyer.

It sounds like this falls under ambiguous CCRs and is up to a judge to decide - so then in everyone's opinion, the CCRs should more clearly define what is expected.

Are there good examples of what landscape design guidelines should look like?

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By CathyA3 on 09/09/2021 8:17 AM
In condo communities, satellite dishes need to be installed on common elements by definition,

FWIW I agree scenarios where satellite dishes and other antennae would have to be placed on common elements changes everything. In such instances, the COA/HOA has much more power to restrict and (understandably) get away with it.

JohnM93 (Ohio)
Posts: 57

Posted:

Quote:

Posted By AugustinD on 09/09/2021 8:28 AM
Posted By JohnM93 on 09/09/2021 8:05 AM
what would your expectations be when a board says:

- you need bushes over there screening your driveway, or more bushes on the side of your house, taller, shorter, etc.

This is similar to the home design discussion we had that the HOA president has already alluded too - saying "we will ask for more landscaping on your brick side"

Thank you,

The full board is copied on all our email exchanges and they are likely having side conversations. The president is the aggressive mouth piece and no board members have voiced their opinions or shared any voting outcomes, so yes, I am saving the Country Brook case as my last resort. There is no ARB, the neighborhood is only about 50 homes and likely the President doesn't want to cede control so has kept this duty for the HOA Board.

We are having a sit down meeting with them this weekend as we want to hear what other board members have to say. We are not trying to be the bad kids on the block, but we will push back against unwritten rules.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By JohnM93 on 09/09/2021 8:30 AM
It sounds like this falls under ambiguous CCRs

In my opinion what the Board or president is attempting falls into the category of "attempting to amend the CCRs without following the covenant-prescribed procedure to do so."
Quote:
Are there good examples of what landscape design guidelines should look like?
Your HOA's CCRs appear to give the board discretion in only one way "approved... as to harmony of external design... " As has been discussed, this is quite vague. For the courts to enforce architectural yada covenants typically requires that the covenants have a lot more specificity.

Vague architectural verbiage like this in Declarations is common nationwide and, as indidated, pretty, though I guess not entirely, worthless. It's also common for CCRs to elaborate, with substance, on the standards and then often add that the Board or Arch Committee yada may set further reasonable standards within the bounds of the CCRs. (This thread really needs specific examples to talk about this intelligently.) Competent HOA attorneys then advise on preparing an actual, well-publicized set of reasonable standards and incorporating these into Rules and Regulations.

In summary, your HOA's CCRs appear to give the HOA Board and the HOA Design Review Committee no authority to add additional standards to what is already in the CCRs and the CCRs exhibits.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By JohnM93 on 09/09/2021 8:35 AM
The full board is copied on all our email exchanges and they are likely having side conversations. The president is the aggressive mouth piece and no board members have voiced their opinions or shared any voting outcomes, so yes, I am saving the Country Brook case as my last resort. There is no ARB, the neighborhood is only about 50 homes and likely the President doesn't want to cede control so has kept this duty for the HOA Board.

After the recent lawsuit that went all the way to the Ohio Appeals Court, my god. Is this board even using an attorney when it makes these decisions?

I think you owners need to step up and replace these directors (or at least the President-director) at the next election before they bankrupt all of you.

One of the leading causes of loathing of HOAs is all the fighting, particularly fighting that ends in litigation. Some academic studies suggest this is why HOA home values do not appreciate like non-HOA home values.
Quote:
We are having a sit down meeting with them this weekend as we want to hear what other board members have to say. We are not trying to be the bad kids on the block, but we will push back against unwritten rules.
FWIW I do not think you folks are being the bad kids on the block.

Thank you for your patience as I, for one, sorted some things out to the point I was satisfied with the arguments. I think having good stuff and substance in the archives will help others down the road.

JohnM93 (Ohio)
Posts: 57

Posted:

Thanks for all the help - I was just asking about examples of standards that I could share with the board.

But I think I found that with a google search of hoa landscape designs.. amazing how detailed some are.

Thanks everyone for the input - at least confirming that my suspicions were generally correct - and yes, I know none of us are lawyers and courts rule wrong all the time.

JohnM93 (Ohio)
Posts: 57

Posted:

Quote:

Posted By AugustinD on 09/09/2021 8:52 AM
Posted By JohnM93 on 09/09/2021 8:35 AM
The full board is copied on all our email exchanges and they are likely having side conversations. The president is the aggressive mouth piece and no board members have voiced their opinions or shared any voting outcomes, so yes, I am saving the Country Brook case as my last resort. There is no ARB, the neighborhood is only about 50 homes and likely the President doesn't want to cede control so has kept this duty for the HOA Board.

To answer your questions - this is the first term of the board since it was handed over to the owners. The president is almost done with his 2 year term. He owns 3-4 lots so has more votes then others.

No lawyers have been consulted that I know of, likely because there are only 50 or so homes/lots paying $500 yr. There are only a handful of vacant lots left, so this board has not had to review much. The designs they did review are builders that they personally used - so there is likely quite a bit of subjective enforcement.

I don't know if anyone else wants the job - and rumor has it (regarding Arnold the Pig) that the board was personally sued in federal court for discrimination and that insurance and other indemnities don't apply -that certainly scares me from ever wanting to be on the board.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By JohnM93 on 09/09/2021 8:53 AM
Thanks for all the help - I was just asking about examples of standards that I could share with the board.

If you do this, then you are reinforcing the Board's misguided notion that it has the authority to add to what is already in the CCRs. So far, I see no such authority.

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