Updates to rules/regs

Can you cite the covenant that expressly prohibits what the owner wants to do?

If not, then I would get a second attorney's opinion.

Rules and Regulations cannot be more restrictive than the covenants. Furthermore, where the covenants say the board has discretion, the courts say the board has to be "reasonable and fair."

I agree with SheilaJ1's post except for one caveat: It's pretty common for covenants to have verbiage, when it comes to architectural changes, requiring "harmony" of the design of homes. Some state courts give a HOA a lot of discretion to say no to a design the board feels is in-harmonious.

This may be what the OP is getting at. But he has to find the exact words in the covenants that say that architectual improvements must be harmonious et cetera.

To the OP: It's also possible the question will become how much is the HOA Board willing to spend fighting this; what are the chances of prevailing in court; and is it worth fighting the owner (it may be; it may not be)?

Thanks, I added where out decs outline the authority and it is on point with what you said:
There is a lot more to this I guess and you're right how far do we want to go - what is being asked I found a term for which is probably why this is going to turn into something way bigger: Spite Fence

the Board may adopt such reasonable rules and regulations, not
inconsistent herewith, as it may deem advisable for the maintenance, administration,
management, operation, use, conservation and beautification of the Property, and for
the health, comfort, safety and general welfare of the Owners and occupants of the
Property. Written notice of such rules and regulations shall be given to all Owners and
occupants and the Property shall at all times be maintained subject to such rules and
regulations;

ErinA2, some observations, based on reading a lot of case law:

-- The HOA might be on solid ground for establishing rules for the design of chicken coops. The justification would be that the rules help ensure the "beautification of the Property."

-- On the other hand, "beautification of the property" is vague. The Board has to be reasonable when it rules on any given chicken coop. What "reasonable" is depends on what a court says.

-- Best practices (so as to avoid a court challenge and the expense of same) is not to change the rules wildly. Because doing so may result in some now being in violation and so having to be grandfathered in, et cetera.

-- If the HOA Board had written a rule prohibiting chickens, where the covenants are silent on pets, farm animals, et cetera, then the Board might be out of line.

-- If you feel safe elaborating on this forum, then I advise elaborating on what the owner wants and seeing what people here think. There's a lot of experience here, and often based in legal experience with these issues.

-- Please confirm: Did the Board reject the owner's design change because it subtracts from the beauty of the property? If so, this is pretty subjective, and I would say the board is on thin ice.

-- Too bad (for the board) there is not a clause that speaks of 'inharmonious' designs not being allowed. If there were, then the clause would make it a little easier to reject certain designs.

-- Respectfully: Some Boards nationwide think their job is to be wise and do whatever, without regard for the covenants. Not so. Boards should be able to justify every single action they take based on a fair reading of the covenants. Sometimes this requires the help of an HOA attorney, as it appears you are aware.

While "beautification" can be thought of as subjective, it could be that the "spite fence" Erin refers to is objectively hideous.

I disagree with those who insist that if something is NOT in the covenants, it cannot be prohibited. It's impossible to cover every single activity or ARC item to list them all in covenants.

Btw, Erin, do your docs also have a "nuisance" clause?

curious minds want to know.....what is it?

I am not sure that having a restriction for this improvement, before the one owner requested permission for this improvement, gives the Board all that much advantage. If push came to shove, the restriction itself may be not allowed by a court.

IOW and FWIW, I would not beat yourself up for not having had a restriction in place before the owner made the request.

I agree that some "improvements" can be hideous by just about everybody's standard.

The courts really want HOAs to have a set of architectural guidelines in place that is consistent with the covenants. Such guidelines help keep all on the same page and help when a court wants to decide whether a board is being "fair and reasonable." No guidelines could tend to equate to 'arbitrary and capricious.'

1.5 cents

Erin
I assume you have fence regulations. Begin there. In many associations fences are not allowed forward of the back edge of a unit. This in itself prohibits front yard fences

Ours don't - that would've been so easy LOL also our Village allows front yard fencing so that is what the HO is going off...Just wish me luck because this isn't going to go well.
Thanks everyone for all the feedback.
I am sure like many of you I volunteer my time to do this because I do really care about my community.

Thanks for the noxious-situation citation, Erin. You're right, it doesn't fit the fence topic. I also think that if other homes have no such fence in their front yards, it would be unattractive and unharmonious. I also agree that the city code has no bearing on you HOA in this case.

I'm sorry you have to go through this. I's not easy being a decision-maker as directors are!

The fence is allowed because using obnoxious activity as a denial reason is your opinion. First check if the town you live in is incorporated, you’re already in the hole because you didn’t base your denial based off the covenants, now your searching for a solid reason. Unfortunately your don’t have one.

Sorry the front fence is allowed but post your fence restriction even if it’s for rear fences, it may have wording like no fence allowed passed the half way point of the plane adjacent to the front house plane.

The op came here because it appears she’s not on solid ground with the rejection. So far I can’t seem to see a way out for her board. They can only hope the owner doesn’t take this to court.

Like Augustin, I'm wondering too about anything in your governing documents about an Architectural Committee (or CC&Rs require one) or architectural standards or requirements? It's hard to imagine such materials would be in your Bylaws or Articles of Incorporation, but do take a look.

In addition, IL has some pretty sturdy HOA statutes, as I think I recall. Is it possible there's anything in them about architectural changes?

I found this case:

https://www.thefreelibrary.com/Attorney+fees+denied+after+split+jury+verdict-a0571920326

“The plaintiffs in this case, the Swahns, live next door to the defendants, the Hussains, in a town house development. "The Hussains regularly cooked copious amounts of food in their noncommercial kitchen, emitting odors outside their home the Swahns found unpleasant and noxious."

“The development's declaration of covenants, conditions and restrictions prohibited "noxious or offensive activity" or anything "that may be or become a nuisance or annoyance to the neighborhood."

“ At the end of a five-day trial, the jury found for the Hussains on the public nuisance claim and dismissed the count. The jury found for the Swahns on the private nuisance claim and awarded $2,190.96 in damages. The jury also dismissed the Hussain's counterclaim for trespass ”

You failed to mention that the Hussains were awarded $118,264.84 in attorney fees. WIN..WIN

Correct they didn’t get the legal fee’s back since they did not separate the legal fee’s for the defense of the public nuisance claim and private claim plus the plaintiff requested a non suit for the public nuisance claim which was rejected.

But who cares, a win is a win. If owners are willing to pay legal fee’s then spending that much really doesn’t make a difference to them if they win. Which the Husseins did on the public claim which was based on the covenants section of obnoxious activity.

Back to the op, I think you’ll find it hard to prove obnoxious activity for a fence, plus the fence is an improvement to the property. The denial reason is not sound and the obnoxious activity section of the docs is just a “catch all” section written by lawyers, the courts don’t use it and didn’t in the above case.

Pardon. This should be $118,000+.

That the cooking odors were not noxious nor a nuisance was a mere trial court opinion. As a trial court opinion, the decision is not binding on the next judge. The next judge may not see things this way.

Court-made nuisance law is so nuanced that even appeals court decisions on nuisance are hard to apply in the future.

It seems to me that "nuisance" is one of those judicial "I know it when I see it" concepts.

I observe that "Noxious" and "obnoxious" have different meanings. "Noxious" is the word referenced far more often (or maybe exclusively) in nuisance law. It is pretty commonly seen in sections of municipal code and HOA covenants that reference "nuisances."

Here's what the (appeals?) court said in the first few sentences of its opinion pertaining to attorney fees:


Sometimes, in hotly contested litigation between neighbors, everyone loses. Alas, this is one of those lawsuits.

See https://casetext.com/case/swahn-v-hussain

You call what I post, 'negativity.' You have a right to your opinion. I call what I am posting here 'an insertion of reality.' I aim to discourage litigation when it's too much of a gamble.

Back to the original topic. I would have the ARC say it just doesn't fit into the neighborhood, there are no others, and leave it at that. Are there any other regulations in your documents that describe what is allowed or not allowed in the front yard? You might use that argument.

However, the reason I said "just leave it" with the denied argument is that in my experience, the homeowner that was denied will complain, but generally never actually acts on the denial. They might not like the decision and might threaten to sue, but almost no one goes through with it. It's expensive to had a lawsuit over an ARC decision and time-consuming. People generally just give up. And don't be afraid to call the homeowner's bluff. Just tell them this is the decision, we stand by it, our attorney backs us up, and we aren't going to change our minds.

I would not express what is in the article and the cited case law the way JeffT2 did. Notably and on point AFAIC, the article speaks of 175 East Delaware Place v. Hinojosa (Illinois, 1997). The Board made a rule stating no new dogs are allowed. Certain owners objected. The owners said the Declaration was silent on the number of dogs. According to the owners, this therefore meant that the board could not restrict dogs in a unit.

In its decision, the court pointed to this part of the COA's Declaration:

"The Board may adopt such reasonable rules and regulations as it may deem advisable for the maintenance, conservation and beautification of the Property, and for the health, comfort, safety and general welfare of the Owners and occupants of the Property. Written notice of such rules and regulations shall be given to all Owners and Occupants and the entire Property shall at all times be maintained subject to such rules and regulations."

The court acknowledged that, the "declaration and bylaws do not make any reference to pet ownership or dogs, in particular... [But t]he declaration clearly gives the Board authority to promulgate rules regarding use of and restrictions on the use of units. Because the Board is authorized to promulgate reasonable rules for the general welfare of the owners and the declaration is silent on the issue of dog ownership, the instant rule does not conflict with either the declaration or the bylaws.

This again is not quite how I would put it. In the appeals court decision I cited, the court found a Declaration section that said that the COA had the authority to make reasonable rules pertaining to use.

In other words, the Illinois courts are saying COAs had better be making rules consistent with the Declaration. In the Jinojosa decision, owners said, "We get to have dogs, because the Declaration is silent on the subject of dogs, pets and the like." But the Court said, "But you missed the part in the Declaration that says the Board can make reasonable rules about use of units. Therefore, the Court rules for the COA."

The Illinois appeals court decision I cited above appears at https://caselaw.findlaw.com/il-court-of-appeals/1055866.html

BobS38, what I am trying to discourage is newbies here thinking that Boards can make up rules about anything the Board wants. This is not so. The Declaration must give the Board the appropriate authority to make the rule.

A topic not being expressly in the CCRs does not necessarily translate to the Board being allowed to make a rule concerning the topic.

Perhaps this is OBE ..... But thought I'd offer my opinion as it seems to differ just a bit from the others.

To caveat, my experience as a Board member is in Virginia however, I have come to learn that unless a Declaration specifically authorizes a Board to adopt reasonable rules and regulations for "the Lots," then the term "the Property" usually refers to the original, "Submitted Land" that the developer submitted with their plan to the municipality or county, minus the deeded, private property.

For example, Virginia's Property Owner's Association Act specifies, "Except as otherwise provided in this chapter, the board of directors shall have the power to establish, adopt, and enforce rules and regulations with respect to use of the common areas and with respect to such other areas of responsibility assigned to the association by the declaration, except where expressly reserved by the declaration to the members." This is usually interpreted as Virginia association Boards having the legal power to adopt rules and regulations for the common areas, but not for private property (or "Lots") unless and except where the Declaration specifically assigns it to the association.

After a (very) quick review of the Illinois Property Owner's Association Act, the only private property focused rule and regulation power addressed in the law is the power to adopt rules and regulations for the manner and placement of US and military flags. All other rules and regulations pertain to other matters (elections for example). The IL law does not specify rule and regulation adoption power more broadly as the Virginia law does, but the fact that the law speaks to the flag issue alone regarding private property might suggest that there is NO additional rule and regulation adoption power for boards with respect to private property (other than that which is specified in the CCRs).

Since the OP's pasted CCR language refers to the Board's adoption of rules and regs for "....the Property," I see this particular board as not having the legal power to adopt rules and regulations for private property other than US and military flags which is specified in the state HOA law. The term, "the Property" implies to me, common property. Whereas the term, "Lots," refers to private property. In the pasted document verbiage, I see the term, "the Property," but no mention of "the Lots.."

I would therefore suggest that this particular Board does not have rule and regulation adoption authority for private lots beyond what the covenants specifically grants them for US and military flags. Remember that while no one wants an ugly, out of place fence, buyers read the CCRs and make a purchase decision based on the language in the documents. For some that means gauging, "just how much power will my neighbors have over me?"

Bottom Line:
Rules and regs are for common areas (plus any authority granted or specified in state law and CCRs).
Covenants: Private property restrictions specified in the Declaration.