Your interpretation of this Restriction from CC&R regarding underground pools

Hello everyone, I'm a new member of this forum and I reside in a gated Single Family Homeowners' Association (HOA) in South Florida, comprising approximately 300 units divided into two phases. Our community has limited amenities, including one average-sized community pool, a playground, and not much else. Compared to other HOAs in South Florida, our monthly dues are relatively reasonable, as HOA dues in this area can often range from $500 to $800 per month, which is crazy. I believe that the relatively low monthly dues contribute to the lack of involvement from the majority of homeowners here as they pay their part and as long as they don't get bothered they are happy.

When I purchased my property, I was only provided with the "Rules and Regulations" drafted by the current management company and not the CC&R. It was my first property purchase, and was not aware there were more than 1 governing docs. The rules and regulations I was given prior to closing only state a limitation for: "Above Ground Pools: Above ground pools are not permitted within XXX HOA," and then there's another paragraph stating: "No gardens, jacuzzis, fountains, playground equipment, pools, screened rooms, or other proposed improvements shall be constructed within the rear yard of a Lot without the prior written approval of the Architectural Control Board or Declarant."

Before closing, I asked my real estate attorney if she thought I could build a pool in the future, and she said that according to the rules and regulations, she did not see any wording strictly prohibiting pools. She mentioned that as long as it was approved by the Architectural Review Committee (ARC), it should be fine. However, I now understand that the CC&R is what truly matters and looking back that attorney should have disclosed that document was not the CC&R, but that beside the point. Although I didn't plan on starting this project immediately after purchasing the property, it's something I definitely want to do in the near future.

In the first board meeting I attended, I inquired about the possibility of adding a pool to my property. My lot happens to be larger than average, but most lots would be able to accommodate a small pool if desired. One owner with a lot smaller than mine and comparable to most lots in the HOA even got the city to approve a pool project with the variance needed for code setback requirements for his lot, but the Board denied his request to build it. However, my inquiry was immediately dismissed by the board, and I was made to feel like I was crazy for even asking about building a pool.

I respectfully asked why they viewed pools negatively and what the reasoning behind their disapproval was. The president of the board mentioned that it could affect our sprinkler system (which they control), citing a past incident where damage was caused during fence installations, and the HOA had to pay for repairs. I argued that if any damage were inflicted by installers, they should fix it, and ultimately, the homeowner is responsible for the damages (which is clearly stated in the CC&R). I also pointed out that brick pavers are installed all the time without issues with the sprinklers. The president acknowledged my reasoning but maintained that since our Declaration explicitly says no pool, they couldn't approve it without an amendment to the CC&R requiring at least 75% of homeowners voting in favor.

Only about 2-3 homeowners regularly attend meetings, with a maximum of 6-7 at times, making it nearly impossible to gather enough votes without electronic voting, which the board is not interested in implementing. They have not initiated a vote on this matter despite knowing the majority of people would approve it.

The one homeowner who wanted to build a pool started a Change.org petition, which garnered over 200 signatures. However, this is not a valid way to vote on the issue. The problem like i said is that very few people get involved in HOA matters.

The units in our community were constructed between 2013-2014 and were initially priced in the 200-230K range. However, the properties in our subdivision are now selling for a much higher range of 590-620K, indicating a significant increase in value over time. This rise in property value has led to a demographic shift, with many homeowners expressing interest in adding in-ground pools to their properties.

Regarding the CC&R restrictions it states the following: "No changes may be made in buildings erected by Developer or its respective affiliates and/or assign (except if such changes are made by Developer) without the consent of the Homeowners’ Association. No swimming or other underground pool and no screens or similar enclosures shall be installed or erected on or about any Residential Unit. No fence, wall or other structure shall be erected on or about any Residential Unit, and no hedge shall be planted, except as originally installed by Developer or its affiliates or approved by the Homeowners’ Association. In considering any request for the approval of a fence or wall or a hedge or other landscaping, the Homeowners’ Association shall give due consideration to the possibility of same obstructing the view from any adjoining Residential Unit or Common Area and may condition its approval on the hedge or other landscaping being kept to a specific height. All Persons are advised that many fences and walls may be prohibited altogether or, if approved, may be subject to stringent standards and requirements.

I consulted with a friend who is an attorney, and he mentioned that the CC&R appears to have contradictory language. While it restricts the installation of certain structures, it then states if approved by HOA it goes.

Lastly, this board already disregarded the CC&R because another restriction for water front properties prohibit fence installations: "No landscaping (other than that initially installed or approved by Developer),fences, structures or other improvements (regardless of whether or not same are permanently attached to the land or to other improvements) shall be placed within any lake maintenance or similar easements around lakes or other bodies of water." Yet fences were approved and installed in such properties without a 75% percent amendment vote.

I believe there may be room for interpretation within the CC&R, suggesting that the no-pool rule could potentially be subject to approval by the HOA. However, the board has not taken any steps to clarify this issue or initiate a vote on pool installations despite requests from homeowners. I am seeking guidance on the correct approach to address this matter, as I believe that the board may not necessarily need to amend the CC&R to permit pools, but rather interpret the existing rules appropriately.

I apologize for the lengthy post but hope I've provided all necessary details to receive opinions on the correct way to address this issue.

Do they have the ability to approve the pool installation, or would it require a modification to the CC&R?

Thank you for the prompt response and advice. I did sign a document acknowledging receipt of the CCR, but what I was presented with at the time was actually the "Rules and Regulations" created by the current management company hired by the HOA. Whether it was intentionally done or an honest mistake, I vividly recall being given a copy of that document when asked to sign the release. It came as a surprise to me several months later when I discovered the existence of the CCR.

Unfortunately, I was unaware of the difference and signed the document in good faith. It has been nearly four years since I purchased the property, and I understand that it's too late to make any claims regarding this matter. Moreover, I don't think it would have persuaded me to reverse the purchase decision even if I had known about it earlier.

However, my interest in building a pool prompted me to delve deeper into the workings of the HOA. This exploration led me to discover various aspects of the CCR and state laws that the board may not be fully complying with. For instance, I recently learned that they are required to hold a yearly "member" meeting, which has not occurred during my time here. While they do conduct "board meetings" where members can attend as spectators, it appears that they may be mistakenly assuming that these board meetings fulfill the annual member meeting requirement stipulated in the CCR And STATE LAW. This annual meeting should take place in November and has yet to occur since I moved in.

I agree that it is pretty clear that your governing documents prohibit in-ground swimming pools. And they do have a precedent of turning down someone else who even got permission from the county or the city. This would be an uphill battle to get it approved. You could find an attorney to take the case and file a lawsuit. It would probably go to mediation, but they have pretty solid ground. Do you have an actual survey of your property? Is there even any way you could put a pool in without encroaching on the lot setbacks or easements in your yard?

You are looking for any way possible to get around the rules. This is pretty common for people who don't read the documents before they buy. You are required by Florida statute to receive all of the governing documents before or at closing. If you didn't, blame it on your real estate agent. You also had a pretty bad attorney, because EVERY Florida real estate attorney knows that the declaration and the bylaws overrule the rules and regs in a Florida HOA. I suspect if you look in your closing documents the rest of your documents are there. Usually the title company ensures that you are given a copy of all the documents.

I can speak to the fences built on the waterfront. Look carefully at the wording of your documents. It doesn't prohibit fences on waterfronts, it says they can't be built in the easement. So these fences could be built as long as they are not in the easement. How wide is the easement on the lake?

You say that the board is not following your documents in regards to members meetings. It sounds like you haven't had any elections. Did they send out a notice of the meeting or a request for candidates? If there is no one who files an intent to run, there isn't any need to have an election. The directors stay in their positions. It's possible that they make the November board meeting a member's meeting since there is no election. Did they send out the 14 day notice?

Why not express interest in being on the board and get yourself elected? Then you could work with the other board members to rewrite the declaration to allow it. You would have to get a quorum of members as defined in your declaration, which is not easy to do, to approve the changes. Or you may just have to move to another property if you really want a pool, because it sounds like the board is not interested in making those changes to your document.

Florida is a very pro-HOA state. You don't seem to have a good case to override the declaration.

CCRs require an annual member meeting, irrespective of elections. However, there is no documentation regarding any election processes; they only provide the yearly budget. There are no board openings, and though they verbally express willingness to step down, it appears to be just a facade during meetings. They repeatedly promise action but fail to follow through. I plan to consult a lawyer to draft a letter and see their response. Thank you for your input.

Your documents -- CC&Rs and rules & Regs say no above ground pools. None of your arguments matter in the context of your covenants. If your think a big majority of owners in your HOA want to be able to install such pools you need to do th hard work of making an amnedmanet to your coven tats, which probably require th approval of 2/3rd to 75% of all owners.

The bylaws indicate that there must be an annual "member" meeting for director voting since their terms are yearly. However, there is another article stating that if no quorum is achieved, the current board continues for another year. The issue arises because they don't hold the "annual member meeting" but rather conduct board meetings, which are different. As a member attending these board meetings, one is just a spectator.

In the four years I've lived here, no annual member meeting has been held, announced, or happened.

The articles of incorporation mention that rules for voting and removal instructions for board directors will be outlined in the bylaws or pertinent by law( which i know requires 50% +1 members recalling them out) However, nowhere in the bylaws is there any method on how to vote out or recall the board. It only outlines the voting part (no quorum needed but in order to be valid more than 20% of owners need to the cast a vote)

Both the bylaws and articles of incorporation state that there must be an annual meeting, as per Florida statute, yet there is no annual member meeting being held. It's possible they might use the excuse that no one ever shows up to any meeting, as constantly mentioned at their "board meetings," where someone always attends, albeit mainly to discuss fines, towing, or issues with the visitor registration website. Rarely does anyone inquire about the HOA itself; most homeowners seem indifferent unless directly affected.

Despite paying $130 a month (considered low here), there are discrepancies in rule enforcement, such as above-ground pools being prohibited but several houses having them. The board even openly admits to not enforcing this rule. Efforts to vote out the board are hindered by a lack of homeowner interest and participation in the community.

An illustrative incident involves the replacement of our call box in the gate about two years ago. After installing a new system costing around $80,000, they left the gates wide open for nearly six months after the installation was completed. They sent out notices weekly (3 months before installation) for residents to register with the new system but had a low registration rate by the hard deadline. Despite constant reminders, they delayed closing the gate, citing legal advice that they couldn't restrict homeowners' access. Do you believe a court would find the HOA liable of denying access after 3 months of weekly notices via email and mail to register?

After six months, with few residents on the brink of legal action due to security concerns, they finally closed the gate and completed registrations on-site within a day and a half, i had adviced this to be done 1 week after the installation was completed, they ignored me. This situation highlights a lack of proactive decision-making and a reactive approach to addressing issues within the HOA.

Regarding the issue of the HOA or seller not providing copies of the CC&Rs, our lawyer has said that CC&Rs and other legal agreements are recorded in the county where the community is located *and that this recording counts as legal disclosure*. So a buyer who goes to court and claims they were not informed of the provisions in these documents would be unlikely to prevail. In my state, it's always "buyer beware" - and I think this is not unusual.

I suspect Henry lives in a community where additions are also not allowed. Typical lot sizes in newer communities in most of Florida are very small, which may be why they don't allow pools which would take up the majority of the back yard.

It will be interesting to see what reply Henry gets regarding his letter about not holding annual members meetings. If they didn't even try to get a quorum or send out the notice, that's a very serious violation of the statute. Hopefully it will force the association to hold a member's meeting and election. Then Henry can gather proxies from his neighbors to meet the quorum requirement and he can successfully get elected to the board so he can make some changs in the way they run the community.

It is not unusual for HOAs to not allow pools. If you do not like it then your option is to have the rules changed. You can get the vote of other members to modify the rules to fit what the majority wants. The current HOA is bound by the current rules are written whether you want a pool or not.

They can deny your request based on current conditions. Read your documents on how to change them. It is your right to do what need to make a rule change if you follow the process.

It's quite uncommon in South Florida to find a single-family community where pools are prohibited, mine is the only one i know of. Remember Melissa the location i live in is South FL, most developers are happy to sell pools at a large premium with very high margins for them pre constructions to their buyers. Im even inclined to believe many people buy houses with pools without knowing the maintenance required and costs involvesd and they

might regret it if they did not know what they were getting into. It's not my case, Im well aware what having a pool entails and costs. Im sure that if someone when originally buying a property here would have requested one and would have been willing to pay a premium to the developer they would have done it. The CCR in almost every article

makes it clear the developer had the authority to disregard any or everything written there prior to "Turnover".

Im sorry if I'm repetitive but the houses here now cost triple what the original owners bought them for, so the target demographic has changed. Houses here had no fences originally, now the majority of properties are fenced and people are spending money improving their backyard, adding pergolas/outdoor kitchens, etc etc. if you see pictures of how properties are being improved on compared to when they were built it is a drastic change.

From time to time new owners ask in the forum regarding building pools and we have to point them to read previous discussions in the community forum and that we need to get a vote to change CCR, no one has made it their priority to have a underground pools or are willing to do the leg work to do so, Those who want a pool simply buy an above ground pool, which are also prohibited but the board has openly disclosed that they dont see any

issues with people having them and are not enforcing that rule, which i agree with, even though one could argue that there are higher risks of something going wrong with an Above ground pool than with a proper underground pool. If one of those Above ground pools ruptures or "fails" it can cause a flood issue with the adjacent lots. Hence why I was trying to get a point of view in which i can present the board the ability to approve underground

pools without them feeling they are open to liability for disregarding the CCR. At this point I believe they have already opened themselves to liability for all the before mentioned anomalies. As time passes and people naturally cash in their gains and new people begin buying here at the higher prices properties are going for here im sure there might be a change in dynamics of how involved the owners are in community matters.

I could just do the same and buy an above ground pool, but i want to build a proper pool. When I was looking to buy, I chose this community precisely because of the value i saw in the property, this single-family unit cost was comparable to that of a townhouse in another area within our price range and interest. For me, it was a straightforward decision to opt for a single-family home without shared walls, especially considering that the townhome

communities I was considering would have 100% secluded me from a backyard pool as its not possible to build a unground pool on Townhomes.

I would be surprised if I took it all the way to a lawsuit, i would only be willing to pay the money if i was genuinely pissed/disregarded by the board which i dont see it happening. There is a community pool here and there are multiple pools in the very near surrounding areas. I doubt that sink holes are a concern here. One other thing is that the person who wanted to add a pool and went to the trouble of even getting city permits is a licensed Architect, so i would assume he did his due diligence in terms of technical aspects.

This is off the top of my head, but do you have an issue with the water table in your community/area? I know plenty of areas in the south can only have what's called an island basement (above ground), and I could see how a below-ground pool could have similar issues to a regular basement.

If this is true, that could explain why the CC&Rs have this restriction.

First your monthly assessments from $500-$800 per month, are you guard gated, and how many gates?
that could be the reason behind that cost.

Second as with almost any HOA the chain of command to to do anything, make any changes to the exterior is to fill out
and submit and ARC request which is short for Architecture Committee.

Pools are a hot topic for HOAs because of the liability. For those that purchase NFIP insurance, it won't cover floods from
your pool or someone else's. Not only that, the issue of damage to a shared block wall and another property.

Your best bet is to submit an ARC request and then fight it if it is denied.

At my HOA a homeowner installed an in-ground infinity pool that was installed right next to a shared block wall.
The pool started leaking and damaged the block wall between them and the adjoining homeowner.

Another property, the renters installed an above ground pool that was 15' by 30'. The poll collapsed sending water
into that house and the house next door. both homes suffered water damage inside as well as damage to the ground that
the post-tension slab sits on due to instant erosion. both of these instances the owner and the renter did not submit
an ARC request putting the HOA in a pickle.

Do your due diligence because it is easier to ask permission than forgiveness.