Restricting something that is NOT in the CC&Rs

Our previous HOA board caused a ruckus the past two years over several homeowners that used temporary above ground pools. The board stated that they were "against the bylaws" and the "bylaws" didn't permit pools. Of course the bylaws would not state anything about pools since the bylaws state how the HOA and board are to be run. Two "bylaw" votes on the issues were held in 2008, and the majority of homeowners agreed to allow the temp. pools with timeframe restrictions. However the board stated that 66% of votes did not come in, so the "bylaw" change didn't pass.

Our CC&Rs do not mention *anything* about pools. I have pointed this out and this will be addressed later this month at the semi-annual HOA meeting. The only document stating the "Above ground pools are not permitted" are the architectural guidelines drafted in 2000, the year the development was built. These are all private homes with at least 1 acre of property.

If the CC&Rs do not state pools are not allowed, and of course the bylaws do not state this, then I would tend to think that the pools are allowed.

Opinions? We have wasted so much time and money on this issue that I'd like it to be put to rest already.

Thanks,

Rick

You are correct in mentioning By Laws outline the Board's role.
It sounds as if they (the past Board) were not very clear, didn't understand how to explain the situation.
Most CCRs will have a section, especially when it comes to the ARC/ ACC, that will state something like "Guideline must be followed...". Usually the Guidelines are not recorded, so they can be easily changed.
It makes it harder for residents who purchase homes later in the community (when the builder is gone) to know what these are or even that they exist.
Getting back to the CCRs, most have a "catch all" section. I would guess it might be under Architecture and Landscaping. Does your community require approval before any modification (improvements, removals, additions) is made to any part of the Unit? If so, there you have it. The above ground pools would be denied because it is in the Architectural Guidelines that they are prohibited- even if they are from 2000 (makes sure they say "not allowed" or "prohibited", not restricted- restricted means they could be allowed with restrictions, additional landscape...)
ARC Guidelines can be changed easy if they are not recorded. The Board can make changes by passing a Resolution. If your Guidelines are recorded, they will have to be voted on by the members and the percentage should be outlined in your CCRs.

I've pasted the CC&Rs of our HOA below. Doesn't appear to be any "catch-all" statement, and certainly no mention of an ARC. In fact, this CC&Rs do mention swimming pools (#10) when stating that privacy fences are permitted around pools. Does not specify above ground or built in pools. So to me, that would appear to give permission for swimming pools of any sort.

Thoughts and opinions?

Thanks,

Rick

1. No lot shall be split, subdivided by sale, resale, gift, devise, transfer, or otherwise.

2. No house trailer or mobile home or similar item shall be stored in the open on any lot.

3. No building of a temporary nature, or trailer, or mobile home, or tent, except a child’s
tent, shall be erected or placed on the property.

4. No temporary building, trailer, basement, tent, shack, garage, barn, outbuilding, or other
building in the course of construction shall be used temporarily or permanently as a
residence on any lot.

5. No more than one dwelling may be erected on any one lot. No dwelling using modular
components shall be permitted, and none shall be of log or block construction, nor shall
roofs be permitted to be white or light grey or have pitches less than 5/12.

6. No dwelling or other structure shall be erected until the plans, specifications, including
exterior color design, have been submitted to and approved in writing by the Developer,
its successors or assigns, or their authorized agents. Approval of plans and specifications
shall not be arbitrarily or unreasonably withheld. Further, any building commenced on
property shall be completed within one year of the commencement date.

7. Dwellings must be completed before being occupied and all dwellings must be finished
on exterior so as not to detract from the value of the property owners. Dwellings shall
not be left with exposed cinder blocks or any type of temporary siding of sheathing. (In
no instance shall any exterior be left unfinished more than 180 days from the beginning
of construction.) If poured concrete walls are used, then they must be painted the
matching color of the exterior siding: if brick or stone is used as the dwelling face, then
the brick or stone must extend to grade level.

8. Dwellings must have a minimum of 1,900 square feet of living space, excluding
basement and garage space. Further, the developer or his assigns reserves the right to
selectively increase the minimum square foot requirement.

9. Outbuildings erected on each lot are to be limited to those uses related to single-family
dwellings and no structure shall be of unfaced concrete block or unfinished material.
Grantor or his agent shall review all such structures to determine that it shall not detract
from the appearance of any home.

10. No fence shall be permitted within the subdivision except fences constructed of board,
stone, hedge, wooden picket, or split rail, and provided said fences be placed along the
back property line, along the side property lines to points not to exceed the rear building
line, and across the lot from said points to the rear corners of the building (dwelling).
Privacy fences may be erected around the perimeter of swimming pools and tennis courts.
The design of all private fencing must be approved by the developer, his successors or
assigns prior to construction.

11. No outhouses shall be permitted on any part of the property. All toilet facilities shall be
contained within the dwelling house and be emptied into an individual septic tank and
drainage field, sewage disposal system, or public sewage system. All toilet waste
facilities shall be built and maintained in accordance with the requirements of the West
Virginia State Department of Health.

12. When any dwelling structure shall be constructed on any lot, the owner thereof shall
cause that portion of such lot owned by him and not improved by said dwelling structure,
other building, appurtenance, or driveway to be properly graded, seeded and suitable
planted with grass, trees, or shrubbery.

13. Each homeowner shall keep all lots owned by him and all improvements therein or
thereon, in good order and repair, including but not limited to the seeding, watering, and
mowing of all lawns, the pruning and cutting of all trees and shrubbery and the painting
(or other appropriate external care) of all buildings and other improvements, all in a
manner and with such frequency as is consistent with good property management.

14. No manufacturing or commercial establishment of any kind shall be erected on said
property, and no building erected thereon shall be used for commercial purposes, nor
shall said property in any way be used for other than strictly residential purposes, but
nothing herein contained shall be construed to prevent a bona fide lease of any dwelling
erected upon said lot, for residential purposes.

15. No signs, billboards, or advertising devices of any kind except those used in any
subsequent sale of the property, shall be placed or otherwise installed on any lot or
building within the subdivision, except that the Developer may use signs to promote the
sale or improved or unimproved lots in the subdivision.

16. Domesticated house pets shall be allowed within the subdivision, provided such pets are
contained within a fenced-in area, or secured by a leash, chain, or rope. No animals shall
be allowed to roam freely within the subdivision. No livestock, including but not limited
to cattle, hogs, horses, ponies, chickens, goats, or fowl of any kind shall be permitted on
the premises. Dogs, cats, and other household pets may be kept provided they are not
kept, bred, or maintained for any commercial purpose.

17. No lumber, metals, bulk materials, refuse, or trash shall be kept, stored, or allowed to
accumulate on any lot, except building materials during the course of construction of any
dwelling. All trash or other refuse must be kept or stored in covered metal or plastic
containers. If trash or other refuse is to be disposed of by being picked up and carried
away on a regular and recurring basis, containers may be placed in the open, on any day
that a pick-up is made, at such place on the lot so as to provide access to persons making
such pick-ups. At all other times such containers shall be stored in such a manner, so
they cannot be seen from adjacent and surrounding property. No noxious or offensive
activity shall be permitted on any lot, nor anything done thereon which may become a
nuisance to the neighborhood.

18. No open fires, other than cooking grills, shall be permitted on any part of the property.
Outdoor fireplaces, and all chimneys shall be provided with fire screens.

19. No unregistered automobiles, trucks, motorcycles, motorbikes, or other vehicles, whether
motorized or self-propelled, shall be parked or placed anywhere within the subdivision;
nor shall the same be driven or ridden upon any streets, roadways, alleys, or sidewalks
within the subdivision, nor upon any lot, open area or trail within the subdivision. No onstreet
parking shall be permitted of any vehicles, nor shall unlicensed or unused vehicles
or commercial vehicles be parked or abandoned on lot.

20. No motorbikes, trail bikes, motor scooters, or the like, nor any snowmobile shall be
driven or ridden anywhere within the subdivision.

21. Driveways to house sites on all lots shall be constructed by the Grantee at his cost with a
culvert (metal drain) across the front of said driveway. Specification for each culvert
must be approved by the Developer or his authorized agent.

22. The Developer reserves unto itself, its successors, and assigns, a utility and/or drainage
easement ten (10) feet in width along the front, sides, and rear of each lot.

23. All public utility services shall be buried below ground on all subdivision lots.

24. No television, radio, or other type antenna or satellite dish shall be erected on any portion
of a lot except behind the rear building line of the residence.

25. No private or public hunting shall be permitted anywhere within the developed or
undeveloped lands of the subdivision. No rifle or revolver shooting shall be permitted
within the boundaries of land controlled by Meadowbrook Farm.

26. No lot shall have access to any road other than those of Meadowbrook Farm.

27. No churches or houses of worship shall be permitted within the boundaries of
Meadowbrook Farm.

28. Homeowners Association. For the purpose of maintaining roads, traffic control, general
planting within the roadway areas, and all common community services of every kind
and nature required and desired within the said subdivision for the general use and benefit
of all lot owners, each and every lot owner, in accepting a deed for any lot in said
subdivision, agrees to and shall be a member of and shall be subject to the obligations
and duly enacted by-laws and rules of the Meadowbrook Farm Improvement Association,
a non-profit association. It is also understood that each lot owner in said subdivision
shall be obligated to pay Ninety Dollars ($90.00) for a Road Maintenance Fee on the first
day of each year to the Meadowbrook Farm Improvement Association. Future fees and
assessments shall be established by the Meadowbrook Farm Improvement Association.
However, the annual average common expense liability of each residential lot unit,
exclusive of any optional user fee or any insurance premiums as established by said
association, may not exceed $100.00 as adjusted pursuant to §36-B-1-114 and §36B-1-
203(2) of the West Virginia Code Annotated. The developers, their successors, or
assigns, shall be exempt from the maintenance fee on the original subdivision of lots until
such time as all the lots have been conveyed by Meadowbrook Farm to a third party.
Developer shall be under no obligation to maintain the roads in said subdivision and shall
convey Meadowbrook Farm to the Homeowners Association after 75% of the lots are
sold.

29. Duration. These covenants, conditions, restrictions, and easements are to run with the
land and shall be binding on all parties and persons claiming under them for a period of
twenty-five (25) years from the date of recording of these covenants. After such time, the
said covenants, conditions, restrictions, and easements shall be automatically extended
for such successive periods of ten (10) years, unless an instrument signed by a majority of
the then owners of the lots within the said subdivision has been recorded, agreeing to
change said covenants in whole or in part.

30. Enforcement. Enforcement shall be by proceeding at law or in equity against any person
or persons violating or attempting to violate any covenant, either to restrain violations or
to recover damages, and furthermore, the person or persons in violation shall pay all costs
of any such suits to enforce compliance with these covenants.

31. Severability. Invalidation of any of these covenants, conditions, and restrictions by
judgment or by court order shall in no way effect any of the other provisions, which shall
remain in full force and effect.

Thanks for the 2nd set of eyes Michelle. Now for a follow up question. What exactly does "duly enacted" mean? The architectural guidelines which states "no above ground pools allowed" was written by the 1st HOA president in 2000 prior to the completion of the development, with no vote or input from the community. This document is even signed by him and no one else. Plus, plus we had two community votes in 2008 on allowing temp. above ground pools which passed with a large majority in favor of the pools.

Thanks again,

Rick

What about section #29? We have a similar clause in our HOA. Does it mean there can't be a vote for 20/25 years to ammend this document. I know, my usual question!!

It doesn't appear that they can't be amended during that time.

But really, I think we'd need to see the by-laws to see if process for amending might not be mentioned in there.

I totally understand this is each person's interpretation. I just feel the amendment provisions for the by-laws are seperate from the amendment provisions for the declaration. Obviously the by-laws have a different purpose than the decleration. So it was interesting to see another one similar to the one we have in our HOA.

It seems on this forum that most documents are like yours. It's crazy how different each state is!!

HI, THIS DOESN'T HAVE TO DO WITH YOUR QUESTION, BUT I DON'T KNOW HOW ELSE TO ASK.
how do we go about getting some type of information on our hoa?? we paid fee's, called the number for the fee's, and were told they do not send out any info packets. i've been reading this site for hours now, and it seems there should be some type of information packet. please help, we are new, and paid dues, but no info provided. excuse the no knowledge!!

thanks, and any help would be appreciated..

Hi Joe,
You can certainly request them from the title company, etc. but my favorite is knocking on neighbors doors and asking a few questions:

1) who is on the Board
2) do you have our HOA docs I could borrow to make copies of
3) when was the last meeting and do you know when the next one will be

It's a great way to get to know your neighbors and is totally free!!

the county recorders website?? we have went to hampshire county and where deeds are listed, but didn't see anything for hoa.

I know that was alot to absorb, and I thank you for taking the time to read it.

I believe I understand some now. so, we do have a deed, but it is not like the originial one at the courthouse, that many tell us has our deed restrictions on it. so , do we go to the court house to get it?? will they give us a copy of our own?? thanks so much. we will start with getting our deed, and then asking the hoa people for a copy of the hoa rules, regulations. Sound good??
many of us believe we would be better off on our own, as it seems the main objective for the hoa is for the bathhouse, & people using that well water. were not willing to pay for them using the water, & electric for it! as we just had our own well done in august. we always brought our own water, and lots of it! kinda miss that now! thank you so much for your time. appreciate it.

Joe,
When at the court house, go to the Planning Office and ask to see the Master Plat for the developement. It could be that they are confusing the Master Deed with the Master Plat or some such, but somewhere there is a Master Plan or Plat.

bear with me.

is a master platt differant from a deed??

we received what they called a plat, but it only shows all properties, and the dimensions of them. just one big picture, that's all.

so if we ask for a master platt, that would be different, correct??

thanks so much......

Joe,

A plat is a map of the s/d showing all the parcels; it is not the same as a deed. The deed states who the property owners are and if there are deed restrictions on the property it will be stated therein. If you don't have a copy of your deed you can obtain one from the Co. Recorder's Officer. There may be a small fee to pay but it would be well worth it as, IMO, this is a document you really should have. If your Co. Recorder has a website you may be able to pull up a copy of your deed from there and print it out instead of paying for a copy.

If the HOA is mandatory you do not need to join; you are automatically a member as soon as you close on your property. As a member you are required to pay your assessment. In most HOAs all members pay the same assessment; however there are some assn's (mostly condos) where the member pays according to the sq ft of his unit. Your CCRs should state how the assessments are assessed. Don't withhold paying your assessment because you think you might be assessed the wrong amount. Instead pay whatever you are assessed and ask for proof that the amount is correct. If you withhold paying your assessment the BOD will consider you delinquent and you will be subject to the collection policy which could lead to foreclosure of your property.

Generally speaking, most CCRs give the BOD the authority to set the amount of the assessment. Oftentimes there will be a cap on the amount it can be raised w/o a member vote, but if the cap is not reached the members do not have to vote.

If your HOA is voluntary only then do you have the right to determine if you want to join or not. If you decide NOT to join you are not subject to any of the rules of the HOA and do not have to pay assessments. However, you will still be obligated to abide by the deed restrictions.

thanks mary. that was helpful. we don't see anything in our deed that mentions restrictions. nothing. i have to ask this again. does it say on your deed that there is a hoa?? b/c it does not on ours. that's why we thought there was some type of other deed.

we are for it, but want to see some type of proof about there budget, and fee's. b/c many say they have paid, and the roads are still quite bad, and money just goes to there bathhouse, and wells, & electric.(people are hooked up to wells, have been for over 20 yrs. or more, and they use it only, and pay no extra). some property owners use the bathhouse, and we suggested that they put a separate meter box on the bathhouse. that way, the home owners using the wells, get a separate bill. we don't see that happening right now!! we don't use it, so we feel we should only be paying for maintenance.

i say this all again, b/c when the man went around with his papers for new hoa, his primary concern was for the people using those wells! not for the roads, ect. his friends using the wells.

i do thank you for all your help, and will try not to bother with my questions, as we don't know much about any hoa, and especially this one, with no papers or anything to go on! we do however feel bad for the elderly man who did so many good deeds thruout his life for these people, then they fail to pay over 5 years, and he has paid everything himself, and he is still allowing the water to be hooked up until end of january! he is going to deed the bathhouse, wells, pond ect to whomever, if a hoa is formed. just sad, and he is a old timer, with old values. the kind that we no longer have.
wish us luck digging out our cabin! our neighbor called us to tell us there is 4-5 feet of snow there, and he made us a lil path to walk, but no driveway path! so we'll be trugging thru waist snow this weekend! but it'sll be worth it to get to our cabin! thanks again for everything.

Joe somewhere on the deed you have should be language similar to this:

Subject to easements and restrictions of record, including, but not limited to those easements, covenants, conditions, and restrictions set forth on the Record Plat of Happy Dreams Subdivision, Section One, as aforesaid, and the Declaration of Covenants, Conditions and Restrictions and Reservation of Easements recorded in Official Record Volume 0000, Page 0000, as amended and supplemented.

What you need are the Declaration of Covenants, Conditions and Restrictions which should be on file at the County Recorders office. The CC&R’s will say whether or not the HOA exists, the type of HOA and the restrictions in place. Before you go there I would call the Recorders office and ask if the information is available online; due to the age of the HOA it may not be. The HOA should also be registered with the WV Secretary of State’s office but from your description I’m betting it isn’t.

Now this is just a WAG (wild a**ed guess) but it sounds like the “old man” just divided up his property and sold off lots since you state he’s planning on turning over the deeds to the bathhouse and wells if an HOA is formed. Be very, very careful and get an attorney to look the whole mess over for you.

Joe,

I'm thinking Glen may have hit the nail on the head. When the "old man" started dividing up his land I wouldn't be afraid to bet he never did write up the CCRs and/or form an HOA. IF CCRs are not recorded at the Co Recorders office it's a good possibility they don't exist. If the Sec of State has no record of the HOA, it's a good possibility it was never formed.

Check the copy of your deed again, if it doesn't make any mention of deed restrictions, perhaps there aren't any recorded. The "old man" may have goof in that dept. also! The deed would not state what the restriction are, just that they exist. And, it would not state whether or not an HOA exists, that info would be in the CCRs (declaration of covenants, etc.)

Have fun trudging through the snow this weekend. My brother (Pgh area) had about 21" the first snowfall -- I don't know what he got with this last one. If you're up in the mountains you probably got a lot more.

BTW, don't hesitate to ask more questions -- that's what we're all here for. CCRs and HOAs can be very confusing and I can certainly understand what you must be going through.

I understand that robert. I didn't mean to sound harsh. I do agree with you about checking things out, and waiting awhile. Im a bad one at barking, ask my wife!

we are asking for suggestions, as our meeting is this saturday,& we are to decide if we want a hoa or not. we are also to have monies in hand, for dues. just uncertain what to do, and uncertain as to what to pay, since many pay something different. this is the first step, and i don't wanna pay, but my wife says we should, & wait it out.

Joe,
You must have thought your wife have pretty good instincts when she married you, so, listen to her. How much money are you anguishing over? I doubt if anyone is picking on you or trying to scam you so they can get free water. You all are going to be the new kid on the block for a while, Get to know your neighbors, enjoy the new place, and nothing is worth much if you don't work for it, in some fashion. This post is impossible to answer other than saying, it appears someone is claiming that the property is free and clear.
However, I would be suspect about the elk subdivision. If you find any elk in WVA, let us know. I know about where you are referrencing in WVa, since I am from western maryland. Seriously Joe, just keep peeling back the layers, I suspect you will never get all clear answers, but, it will all work out, time and patience fits the bill.

Robert,

yea, my wife does have good intentions, but I don't let her know that to often.
You'll laugh at what I am anguishing over, 430.00. but as i said, we paid for 09 & 08. My wife says, " We're just going to pay it, who cares if they get free water, & we pay for some of it, we don't know who they are, or what kind of home they come from, or if there elderly, sick, or jobless, were new, and we'll just pay it this time, and see what happens, and we'll ask for the declaration, and go from there". she is more sensible than me. I am the tightwad, as she says! thanks alot for your help robert. and by the way, we cannot find our deed at the county recorder site on line. and then there is another county site, which they charge almost 100 just for one month use, so, we'll head to court house. have a great week, oh, my wife found some platts, just lined out, with no names, ect. and one of the maps was dated 1959 & then 1973, so possible it may of been started then, don't know. The owner apparently has 3 subdivisions, and one big lot"elkhorn", he did tell us that he bought the whole side of a mountain, when he got out of the service, and he & his wife built a cabin. he is a great guy, who was taken advantage of. it's near short mountain. we have a neighbor who is from maryland,baltimore area. he is good guy too. okay, take care, & thanks...

Joe,

Joe, this is for your wife, I think she might bestow this new name on you as your Mountain Name

Short Mountain's name is derived from its original name of Short Arse Mountain.

Wikopedia says this. I bet you know where Frostburg, Cumberland, and maybe even Hackers Creek is in WVa.