My HOA is charging me to use a Common Area but the Covenants dont say they can.

Andrew,
What kind of common area are you using? Common area is for all of the membership to enjoy and what is with the horse stalls? It belongs to the association? You need to fill us in on how the common area is divided and used.

These are all common areas for the community. Anyone can use them at anytime without restriction.

The original poster said: "The Covenants do not give any specific powers to charge any fees to use the common areas"

And, conversely, the covenants don't appear to provide any restrictions against doing so, either.

HOATalk's comments about a resident's exclusive use applies in many of the HOAs and COAs in our area as well.

AndrewF: It is important to use common sense for common areas!!!

For the Board is charge to rent the clubhouse for a person's specific use,
IMO, is certainly warranted. Wherever one goes today to hold a party, it is common to pay a rental fee for the facility. This is over and above the normal daily use of residents in the clubhouse for cards, or games, etc.

Now to the covenants 'specific verbiage'. You need to determine if the horse stalls are part of Common Asset items. ou say that common areas are to be maintained and improved through regular annual assessments....BUT are the horse stalls listed same as streets, and common ground (bridle trails)?
The common assets are always listed separately and individually, since these are the items the assn. is responsible for--also to be included in a Capital Reserve Study for future long term repair needs.

Ok.. I thank you all for your comments so far.. But.. this discussion needs to go deeper.

I don't think we have exclusive use of the stables. Anyone can use them anytime they want. Same for the pool. Anyone can use the pool (during open season)and in fact the pool only has about 10 chaise lounges and a couple of tables with chairs and the actual pool is only about 30ftx80ft.. In comparison, more homeowners could use the stable than the pool at one time. Furthermore, those using the pool do not do any of the upkeep or maintenance to the pool. I would like to see a fee of at least $100/summer per house to access the pool if they are going to charge me to use the stable.

As far as paying to board my horse.. our stable is 100% self care. Each horse owner pays for 100% of the feed and hay and everything else they need. In addition, each horse owner is responsible for mucking their own stalls and paddocks and keeping the barn clean as well. We further are responsible for all maintenance items at the stable as well. There are no hired hands and the horse owners do all the work. What is provided to us, is the stable and paddocks.

As I stated before, we don't really mind paying $50/month to use a stall. The problem is that the BOD is now using us like some "cash cow" and in fact just increased our dues to $60/mo. Our community is getting about a $2500 positive cash flow from the stables to improve other areas of the community. Now you might say, that's petty compared to what you will pay to board at a equestrian facility. However, I pay regular annual dues to maintain my community, my community pays $0.00 towards my horse and I do all the work as well.

It is just like the clubhouse. That clubhouse is a common assett and every homeowner has a right to use it. There is a reservation sheet in order to reserve it when you want to use it.

Back to the covenants. Our covenants do not mention that we have a pool, or a clubhouse, or a stable, or tennis courts, or a basketball court, or anything. They don't mention any of the common assetts for the community. I simply feel that there should be fees to use the pool, tennis, stables, and clubhouse... or no fees for any of them at all. I believe in a uniform policy.

I would like to share one final bit of info... This community used to be owned by the developer. His original intent was to make it an equestrian country club. He had the pool, clubhouse, and stables all seperate from the building lots. Back in 1989 there was a fire at the pool (it was indoor and now an outdoor!!!), after the developer collected his ins. money, he turned over the stables, clubhouse, and pool to the home owners assn. Now, in the original covenants (pre-fire) there was a paragraph giving the board permission to set stall fees in cooperation with the stables, because the Stables at that time had a stable manager along with full care and board. Here is the good part...After the fire, and post transfer of the 3 assetts, the covenants were ammended and removed in its entirity the paragraph giving the BOD power to set a stall fee. They did this as there was no longer a stable manager and were no longer renting stalls to the public. Only lot owners could use the stables from that point on...

Andrew first concerning the clubhouse as others have stated it is common practice to charge a rental fee for a persons private use of the clubhouse because you are depriving others the right to use it. And while you say there is nothing in your documents that allow the BOD to charge you the stall fees; we can't be sure of that because we don't have your documents and just have your word for what is or isn't in them. Have you tried writing a polite professional letter to the BOD asking why there is a stall fee and where it says in the documents that it is allowed?

A horse stall is not the same as the pool, b-ball court, etc. where any number of homeowners can use the facility at one time. I assume you use one stall set aside exclusively for your horse, meaning your neighbor can't put their horse in your stall. That IMO would not be common area but limited common area (set aside for your exclusive use).

Here is my take on it, I agree with others that the horse stall is considered exclusive use because when your horse is there that stall can't be used by others. The BOD normally has the authority to establish rules and regulations that they are best for the association, that usually includes setting rental fees. I don't necessarily disagree with the notion of charging homeowners when they are allowed exlusive use of a common element.

You stated that they just increased your dues to $60 a month, to me that is cheap for an association that has the amount of common areas and assets you do. It seems to me that your board has adopted the notion of trying to keep monthly assessments down and generating income from stall fees, clubhouse rentals, etc...to offset the costs of your common elements.

On the reverse side they could not charge for anything and just raise monthly assessments to cover the cost of these elements. Then you would have people asking why they should pay extra to house your horse in a stall or for someones party in the clubhouse. I personally have not seen anything to me that seems out of line.

Maybe I didn't mention it...
Just to clarify ...We have 30 stalls and only 11 of them are being used which is the most it has been used in the last 15 years. There are usually 5 or 7 horses max. Prior to 4 years ago, there were zero horses in the stables for like 10 years.

It is not uncommon for Boards to rent or charge for a specific use of the property. As long as they don't partition the property which means deed changes, they can't do that.

I would suggest you try and get some support from the rest of the owners if you feel you are being unfairly treated, but it would all have to be changed in your documents. There is no requirement to make facilities self sufficient, nor can there be collection for a specific amenity up keep. It all goes in one pot.

If your assocation has no record and be sure of this by getting a copy of original at courthouse, then if still not there, what you have been doing is what you are going to have to change. This will require a group to research how this should be changed to not violated your documents. Then that group would have to Amend the actions prior to their recommendations for an ammended version and determine where it is to go in your documents and then, after discussion with the members at a special meeting, and then voted. You will need some supermajority vote, see if there is not a section that deals with ammendums.

Andrew:

Reread your docs. I bet in there it gives the board the power to make rules and regulations they feel are necessary for the common areas. If they think charging for its use is proper then it is in the boards power to do so. IF you don't like the practice then you have options to do something about it.

As I mentioned earlier it appears they are using the tactic of charging for usage of common areas to keep dues lower...maybe I am wrong on that. I didn't say it was the right thing to do, but I do believe they are well within their rights to do what they are doing. I agree with what you said that just because you don't use a common element that you should still have to pay for it. However, exclusive or private use of a common element is different.

Ask questions, get involved, maybe run for office the next time. There are things you can do to make a difference in your community if you don't like it.

Gerald,
I think maybe you fail to understand that when you board a horse you are using the stall space as an exclusive use, hence board can charge a fee, and is obligated to. But that fee is rent, not ownership.

In this case I would think at some later date the Horse facility will have to be organized differently, but it can never be partition or restricted to specific people. Operation of the facility could be leased out and fees collected from users to pay for this. I am sure the horse facility will evolve over the years. In any event, ownership is still held by the association.

AndrewF: You state you are on the Board and you feel that the 'Board' is wrongly charging a stall rental fee for one's horse, since it is part of common assets. I think we clarified that it is common sense to charge a stall fee since it gives the owner a specific right for his own horse, same with the clubhouse a right for one's specific use.

As far as the pool and lounge chairs, you feel they should be charging an extra fee for the ones who use these (you do not use either). This is not a realistic comparison w/horse stalls, and I guess you really answered your own question when you stated .."Just because you don't use it, doesn't mean you are not responsible for its upkeep. When you buy into an HOA community, you are buying into the whole smash!!!".

Those without the need for a horse or horse stalls are also paying for upkeep on the common ground your horse and the horse stalls sit on!!! This could someday turn against you. If the present unusued stalls ever come up for an amendment change to dismantle, you and the few other horse owners may be forced to look for stalls elsewhere Let sleeping horses lie (or stand!).

Thank you all for your input. It is very enlightening to see that most of you as well are choosing a biased opinion towards stables/stall fees.

Paul, It is not unrealistic to compare the pool to any other common area that can be used by more than one person at a time. Our pool can realisticly be used by about 10 to 20 folks at a time. We have about 10 to 15 chaise lounges at the pool which I will add that about 1/2 of them are old worn out and missing the vinyl straps that you lay on.

I do not agree with you that a stable would be considered an exclusive use facility until it reached capacity. Same goes for the pool. Once all the chaise lounges are occupied it then becomes exclusive to those who are using the pool furniture. There are many many communities with pools that charge an annual fee to use the pool which is also a standard operating procedure.

Hi Andrew,

I understand the point you're trying make about the fees vs. no-fees but as others pointed out, the Board most probably does have the authority to implement, if for no other reason then the broad statements regarding establishing rules for the common areas.

My CCR does not provide for any fees either but, one day I did find the specific authority (for the BOD to establish fees for common use areas), tucked neatly away in the by-law. If you have by-laws double check, it may be spelled out there.

Good luck.

Rules and regulations are not fees.

They are simply rules and regulations!!!!

Fees are Fees are Fees. A BOD needs to be speciffically empowered to charge a fee.

Paul, You know what ... I'm done with this HOATalk..BS... You are obviously narrow minded and biased. Your arguments are weak and have a lack of validity. Your ignorance and lack of vision are your weakness. You appear just as much of a bully as the rest of Omnipotent Galactic Czars!! I am not here to argue with you.. I can do that with my own BOD.

I dont know why you think a swimming pool is exempt from having a fee to use it. There are countless communities that charge such a fee.

I do not believe I will be responding to this discussion in the future.

Glen,
This is getting commical... Why can't you folks see this as plainly as I do.

What is the difference if someone is using a horse stall, or chaise lounge at the pool, or the tennis court, or the basketball court.. etc... If it is being used by someone, it is being used and you wont be able to use the exact same one as they are until they are done using it. That does not preclude you from using another one so long as there is one available to use. Agreed????

All common assetts are equal unless the covenants specifically say so. Which ours do not!!

Andrew:

you are typical of a lot of new posters who show up here telling their side of the story then getting mad when the posters on here don't agree with you. A horse stall and a chaise lounge are two different things, it is like comparing ants to grasshoppers.

You cannot exclusively shut down a common area for your use which precludes someone else from using it without expecting to be charged a fee. Even if all the chase lounges at the pool are taken that doesn't prevent you from coming in and sitting on the concrete or swimming. Even if someone is playing basketball that doesn't stop you from playing with them or calling next game...same with tennis. You may decide to wait or come back later, but if you want to play or swim you can.

Just wanted to share something I found in my HOA docs under property rights...

1. 4.2 Common Area Maintenance: The council shall be responsible for the manintenance, repair, and replacement of all improvements and landscaping upon the common area, now or hereafter existing, the cost and expense of which shall be charged to the owners as part of the assessment on each lot.

2. 4.3 Right of Enjoyment: every owner shall have a nonexclusive right and easement of enjoyment in and to the common area, in common with other owners, and such easement shall be appurtenant to and shall pass with the fee title to every lot.

What's funny is you don't see how those two support the positions of the posters here.

and this: "A BOD needs to be speciffically empowered to charge a fee."

Not necessarily. They may be empowered to charge fees UNLESS they are specifically restricted from doing so.

Have you found the clause in your documents that specifically denies the BOD the ability to impose fees?

MicheleD: Yes, I agree that the 2-official clauses posted do support the position of many posters here.

I believe there is a block to understanding which would cause the OP to make a statement that the pool and tennis courts do not carry a fee for their use and do not "bring in revenue for their maintenance"....

For us veteran community residents, we know Boards are called to assume their
fudiciary duty in ensuring the income needed to offset expenses for maintainence of common areas of the assn. How this is done varies between assn. communities but all Boards are given the authority to carry it out.

Sadly, fees will continue to escalate due to increased maintenance costs, and Board members will be hard pressed to maintain an Operating Budget which is accepted by all. So goes the life of a community resident...

Andrew,
The answer lies in your Articles of Inc and with your Registration as a "Not For Profit Corp" with the State of Virginia. In those Articles, it spells out the Fudituary duties of the Board members and explicitly, the duties of the President of your corporation.Then your own articles follow that up with a description of Board member obligations.

GeraldT4
(New Jersey)
Our community has boat slips. First come/First serve. If you go out
onto the Lake and then come back and have to pull into another Boat
Slip, then so be it. I agree with you that a stable for a horse is a
different story. How could a HOA set that up as a first come? I think
what needs to happen in this community, the BOD has to write provisions
that seperate their amenities.
Pool Chairs, first come
Exclusive use of any amenities, pay as your use dictates.
Edie

Reasonableness is probably not a valid reason for charging fees. The association is bound by the language in the CC&Rs. If the CC&Rs state that a fee can be charged, then and only then can a fee be charged. The board has no authority to write rules and regulations to charge fees unless the CC&Rs grant that authority to the association or board.

Various courts may have ruled differently, but there is much commonality in case law among the states, particularly with regard to restrictive covenants. For example, the Michigan Supreme Court has opined with regard to restrictive covenants that are considered contracts under the law:
". . . it is not “the function of the courts to strike down private property agreements and to readjust those property rights in accordance with what seems reasonable upon a detached judicial view.” Rather, absent some specific basis for finding them unlawful, courts cannot disregard private contracts and covenants in order to advance a particular social good. . . . “[w]e do not substitute our judgment for that of the parties, . . ." (citations omitted)

The meaning is clear: if the parties (owners/members) don't like the provisions in the CC&Rs, then the owners/members should amend the CC&Rs. Some states may also have additional amendment requirements regarding uniformity of the covenants. If fees are charged for some facilities, then fees may have to be charged for all. And also the case law on amendments likely require uniform charges for all facilities, such as a competitive fee for the use of all facilities.

"Reasonable" is a slippery slope. What a board may consider reasonable may not be what some members consider to be reasonable. There are many posts on HOA Talk on such disagreements between boards and members.