Quote:
Posted By RonW13 on 03/23/2023 12:29 PM
Oh, I absolutley DO agree the violator's lawyer has an excellent point - not having the 2017 Rules properly promulgated/ratified leaves a hole big enough for a truck
to drive through. It could lead to a Summary Judgment for the violators, if it ever gets to court. However, the majority of our board does not agree with me. Nor do they agree
that the no-golf cart rule is unreasonable - they claim golf carts parked in our community driveways are unsightly, (we don't have garages to store them in), and thereby negatively impact their peace and enjoyment of the community. I don't believe a common sense judge who is briefed on the history and location of the community, (ie., ON A GOLF COURSE), would agree that tasteful golf carts represents a substantive intrusion on their enjoyment of the community.
No, the violator new of the rule, they even signed a document upon buying the home that they's abide by the rules, which mentioned the golf cart rule - but they chose to challenge it seemingly because of the defect in our board meeting docs from 2017.
-- I say no way would a summary judgment be granted to either side here. Summary judgement means both sides agree on the facts and that the black letter law says the case must be decided in favor of ____. I do not see agreement on the facts here.
-- The HOA could easily argue that the notice of the rule was constructive, meaning yes, the rules maybe were not promulgated, but the Declaration and state law speak of board created rules and the owner signed off indicating awareness there are rules.
-- I agree that the argument that golf carts is unsightly, so the Board can create a rule (with little-to-no basis in the covenants) banning golf carts is weak. Board-created rules have to have some basis in the covenants. The vaguer covenants (about the board's powers to regulate the exterior of homes) are, the better the chance an owner has of prevailing. The courts say, roughly: 'Vague and ambiguous' in a covenant means the covenant is supposed to be interpreted in favor of 'free enjoyment of property.'
-- Plus see JohnC46's point, about how the original purpose of the rule was clearly different way back when.
-- Enter reality in deciding how to vote (as a director) here. -- I would vote for throwing out the rule and not pursuing a violation against this owner.
-- It's hard to say who would win here, but if this landed in court, I would bet the owner would win. Does the board really want to spend money on defending a weak position?
-- Watch out for HOA attorneys who will be happy to do whatever the board wants, all to pay for their summer home in Blue Ridge Mountains.
-- A board majority here is going to do whatever. I hope the board does not make this a hill on which to die.