Above Ground Pool

DavidD32, respond back something like the following:

Dear Ma'am,

My lot is in Phase 6. I attach a copy of the Supplementary Declaration for Phase 6. The latter states that above ground pools are allowed in Phase 6 with approval of the Architectural Review Committee. My understanding of covenants is that this means the ARC cannot flat-out prohibit above ground pools. Instead, it must have reasonable guidelines for the approval of the pool.

In addition, __ homes in Phase 6 have above ground pools. My application is almost identical to what their pools look like.

Would you please let me know how to proceed so that I may have my application reviewed and hopefully approved.

Thank you,

name
address
email addie
phone number

Stay extremely polite through all this. Keep any possible emotion out of this. The facts speak loudly here all by themselves.

DavidD32, try again with the attachment. Attachments have to be under 200 kilobytes in size. I think pdf or MS Word work.

Please redact HOA identifying information from any attachment.

Chances are I for one would want to see all Declarations.

Also be aware that "Declaration" and "CC&Rs" are almost always synonymous.

In my experience, no. But I would really like to see the opening paragraphs of the Supplemental Declarations for Phase 6 and Phases 9 and 10. So I can hopefully put my finger on the wording that is key here.

Keep in mind that what you are describing (in the one sentence above) would not be a "supplement" but instead would be what is called, in HOA lingo, an "amendment." Notice that the main Declaration has a procedure for amending it (or it better have this procedure; else state law controls). Granted if the Declarant still controls the HOA, then amendment might be pretty easy. Per case law, an amendment by the developer also should not radically change the scheme of things. This is because the courts view covenants as contractual terms. When an owner buys into a HOA, he or she does so believing the covenants are hard to change.

This is your introduction to HOA structure. Ask questions early and often. Do not assume. If others ask you questions here, please try to answer the question and name the person to whom you are responding.

NOW, THEREFORE, WITNESSETH: Declarant hereby declares as follows:
.1 The real estate known as Lots 1through 12, 55 through 64, Phase 10 and Lots 294 through 310, Section 1, Phase 9, of Red Hill Subdivision,
a. as more fully shown upon a plat thereof prepared by Michael S. Roberts, WVLPS No. 799, dated August 17, 2020, and recorded in the Office of the Clerk ofthe County Council of Berkeley County, West Virginia, in Plat Cabinet No. I , at Slide \21-12), for Phase 10,
b. and upon aplat thereofprepared by Michael S. Roberts, WILPS No. 799, dated July 20, 2020, and recorded in the Office ofthe Clerk of the County Council of Berkeley County, West Virginia, ni Plat Cabinet No. 2 0 , at Slide 103-104 for Phase 9,
c. which plats are hereby incorporated herein by reference, are and shall be held,
transferred, sold, conveyed and occupied subject to the Covenants, Restrictions,
Easements, Charges, Assessments and Liens (sometimes referred to as
"Covenants and Restrictions") set forth in that certain Declaration of Covenants,
Conditions and Restrictions ofRed Hill heretofore executed by Phil Cogar
Investments, LLC, dated August 13, 2008, and recorded in the Office of the Clerk
of the County Council of Berkeley County, West Virginia, ni Deed Book No. 906,
at page 13, as such Declaration has thereafter been supplemented or amended, which shall run with the land.
2.
Notwithstanding the foregoing, and notwithstanding implication by Supplementary Declarations referenced herein above and of record in Deed Book 1154 at page 523 (Sec. 1 Ph. 4 and 5) and also notwithstanding express notation of Plats recorded in Plat Cabinet
17 at Slides 121 and 122, the notated side set-back for Phase 9 and Phase 10 shall be five feet (5'), and not seven and one-half feet (7.5'), and the side set-back for such Section and Phases shall be in accord with the Plats of record ni Plat Cabinet No. 2 1 , at Slide 121-122, and in Plat Cabinet 2 1 _ , at SlidelD3-104 describedherein above, which shall be intended to be five feet (5').
2
3.
The Declaration, and its supplements and amendments, shall be amended for the referenced Phase9 and Phase 10, asfollows, and such amendments shall control where in
conflict with any prior terms, and shall run with the land:
a. Fences shall be approved by the Architectural Review Committee.
b. No fence shall be erected nearer to the front street than the rear house foundation wall, nor closer than five feet (5) from the side property lines.
c. No fence shall be constructed of any metal or wire material.
d. Pool fences shall be no higher than forty-eight inches (48").

DavidD32, I read what you provided. I think you are correct, and this manager or assistant is mistaken. I elaborate below.I think the above is saying that by adding the Supplement for Phases 9 and 10, all the prior declarations are now amended to merely include this supplement. I do not believe the above is saying that the Supplement for Phases 9 and 10 amends any prior provision pertaining to swimming pools.I bolded and underlined what I think is key. I believe it is saying that provision e. above (concerning swimming pools) applies only to phases 9 and 10, IMO.

Let's see if anyone else here wants to wade into the weeds and opine or offer experience with supplemental declarations.

The discussion here is designed to help you possibly polite the Declarant (or its agents) that you are correct. It also might prepare you for a meeting with a HOA attorney, if push comes to shove.

Thank you for responding to my questions and being thorough in doing so.

Thanks for your input. I sent an email few days ago pleading my case, but haven’t got a response yet. Going to keep trying for another week and if still don’t hear anything back going to seek advice from an Attorney. Wish me luck.

DavidD32, if the HOA responds and the response does not make sense, post back what the HOA says. Perhaps one more communication from you, homing in on the wording I cite above, could save everyone time, trouble and money.

FWIW I lived in a 2000 home HOA at one point, with something like 13 supplemental declarations. The HOA attorney pointed out some small differences between the supplemental declarations. He explained that this meant that some sections of the HOA had slightly different covenants than other sections. What your HOA's supplemental declarations do seems consistent with this.

Sure. But what the declarant's agent cited does not indicate that the covenants for the Phase 6 lots changed.

Or do you think otherwise? If so, what's the wording that persuades you?

I don’t think David knows for sure if control has been passed? I got the sense that it either happened or it was in-process.

Remembering back to when I first moved to my current house, I agree with you, John: “all bets are off”.

Still, I think ElleN’s advice about a polite “Dear Ma’am” letter is the best course of action.

(Remembering back … ‘my’ Declarent back when was a rather accessible fellow who did grant the occasional boon - I remember he caved very easily on the topic of basketball hoops)

Bill