Yard sales expressly prohibited in our Declaration

Our Social Committee would like to sponsor a community wide annual yard sale, but our governing documents contain the following:

6.42 Garage Sales. No garage sales or other private sales of a similar nature shall be permitted at any time in the Community, it being the specific intention of the Declarant to preserve the distinct nature and character of the Community as developed.

The Board seems to be okay with allowing it, but as the Board Secretary I have a concern voting to allow something expressly prohibited. Personally, I have no issue other than the document. The board president plans to bring this to a vote at next weeks board meeting.

Any advice or legal opinion?

Thanks,
Steve

I am really trying to shave off the edges of that square legal peg to make it fit into the round legal hole that are the covenants. But it is a battle.

How about requiring that 5% of all proceeds of each person's garage sale must go to the HOA, as the HOA will do significant advertising? There. Now one can argue it is not a "private sale." But oops. Now the HOA has income to report. On the other hand, this is what is called "income from members" and so should not be taxable.

Else I think you are right. To allow a community-wide garage sale, an amendment of the covenants (and so owners' vote) is needed.

A board purposely violating a covenant is legally unwise. For one thing, in the future, an owner could ask you to violate another covenant, because doing so seems so sensible. It's potentially a slippery slope.

Stay tuned. Maybe someone has a way to get around this. Or maybe enough people will say: Just roll the dice and have the sale. It's a great way to keep old couches from landing on the curb for a week.

I think the operative word is "the intention of the Declarant". Is the declarant anywhere to contest?

have each owner drag their shit to the club house, staffed by the management company...then its not a garage sale nor a private sale.

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but in all seriousness, the CCR's are what the CCR's say. Are you willing to violate this CCR (which breaches the Directors fiduciary duty to the HOA), and open the door to further ingore-the-ccr requests? If you allow this, then anyone can claim ability to hold a yard sale at any other time of year.

Either amend the CCR's or comply with the CCR's.

The Declarant is gone, we transitioned 3 years ago. We are in the midst of doing the document rewrite to remove any reference. I don't believe it matters if the Declarant is present, the addition of the reason that article in the declaration doesn't change the prohibition even without the Declarant.

My suggestion is that the membership vote to allow annual yead sales and we modify the article to so state. Since we have to have a membership vote for the rewritten document, seems logical to me.

Thanks for everyone's input.

Steve

I guess I am in the minority here, but if your governing documents say no yard sales, the HOA cannot sponsor a once per year annual yard sale. That is a violation of your governing documents.

You can, however, revise your documents.

Agree 100%.

"Yard Sale" prohibitions exist to prevent people from operating never-ending yard sales. There should be flexibility here and a community yard sale, held annually is a great idea as is modifying rules to allow regulated sales to ensure such sales open and close within a day.

Oops - I misread your post. I guess I disagree, then.

If the seasoned HOA leaders here can't even agree on this how do you think the homeowners will react? As a Board member one of my beliefs was to avoid controversy whenever possible. We already took enough crap and I would not be willing take on more over a yard sale. It just ain't worth it.

The rule state no garage sale or other "PRIVATE" sales of a similar nature - to me, that would prohibit random people from popping up and having a yard sale whenever. Ironically, one of our former presidents had a habit of doing this nearly every weekend for a while (I think she was decluttering), and had to be told to stop. This president also helped organize the community yard sale which we did have once a year, until she stepped down from the board. Today, you might see someone hold a yard sale every once in a while, but because we're a townhouse community, it's not really conducive to a sale due to limited parking.

I'd ask the association attorney about that part of the document - perhaps you can sponsor a community event, but make it clear this is the ONLY time of the year where such sales will be allowed, and owners must sign up in order to participate. You could also consider polling the community to see if that part of the document could be amended to allow them with certain rules such as requiring an owner to get permission from the board, indicating what times of day and/or days of the week the sale can be held, etc.

It's one of the reasons I won't ever live in an HOA again.

The only estate sales in my community were apparently held online/off-premises and people just came to pick up their items. Still an uptick in traffic but nothing unmanageable.

The insurance bit is scary, since there are people out there who will stage slip-and-fall accidents, and a yard sale in an HOA/COA is a perfect target.

I never asked what would happen if a homeowner held a sale after being told no, and someone got hurt. Would that be enough to shift liability onto the homeowner? Maybe, maybe not. Fortunately yard sales don't seem to be much of a thing around here.

I wouldn’t vote for it. Next month you will have some idiot holding a garage sale every weekend and claiming discrimination if you attempt to enforce.