No Specific Rule Permitting or Not Permitting Something

There is no way bylaws or other documents could list everything, so something like a trampoline would fall under "Structure."

The Board's job is to take its "laws" and explain, update, or expand definitions for current situations. These outdoor tramplines are somewhat recent. Skateboard ramps and jet ski trailers are also new on the scene.

It's all about communicating with the Membership.

Dee,

I read nothing in there that could be applied to any outdoor recreation equipment. Basketball hoops, above ground pools, tents and trampolines. There is nothing that the Board could use to adapt it either..

BUT!! you are a condominimum. Is there areas that the unit owner owns specifically to their unit where a trampoline could sit? Condos usually do not have owner area other than common area.

How about noise restrictions?

We are technically zoned Site Condo, which means we fall under condo acts, but in reality we are more like platted subs. We individually own our yards and homes (interior and exterior), but are deed restricted. We have some common area landscaping, but no clubhouse, etc.

No one has specifically asked about trampolines, but my concern, as Susan alluded to, is what happens when someone either puts up something questionable that is not specifically prohibited or applies to do something that is not prohibited. Can we require removal or tell them no if it's not specifically prohibited?

We have some other sweeping "harmonious" to the community clauses, but I don't know if those types of things hold up and was wondering what other's experiences were with that type of thing.

Dee,

My Association tends to give the tie to the homeowner. If it's not prohibited and the neighbors do not object, as long as the trampoline is in the back yard, whats the harm?

The Board/ARB certainly has the right to disapprove it. The reasons for the disapproval should be within the current guidelines (not a future guideline).

When I served on my ARB, I kept pointing out that we had to keep personal taste out of the decision. The decision should be based on existing rules, concerns of neighbors and/or concerns to the appearance of the community. We also pretty much allowed anything to be in the back yard if it was below the height of the fence.

Hope this helps,

Tim

By the way, the amendment process let everyone know exactly where the members of the association stand on such an item.

If the requisite majority approves or disapproves the amendment, then that is how the community feels about such things.

Until you have such an amendment, I do not believe you can deny anyone the ability to put up a trampoline.

Prior to living in our current house we lived in a condo where I served on the Board. Being a condo we had significantly more right to control the use of the common elements because once you stepped out your door you were standing in the common elements. With a HOA where owners have control over their own lots (within the limits of the rules and CC&Rs of course) it's a bit different.

I'm not a lawyer although I do legal research for a living. When I served on my Board, I got to attend legal seminars put on by the association attorney a few times a year. No matter what the topic was that night they always spent a bit of time talking about rule enforcement. Basically this situation came down to this: If the Declaration / CC&R is silent on an issue, the Board may be able to regulate it but such rules need to be tied to a specific objective.

Generally speaking in the United States if something is not made illegal it is by default, legal. The same principle applies to association rules. If there are no rules prohibiting something then it is permitted. So let's go back to the trampoline issue. What would the purpose be of having a trampoline rule? Is it because they are unsightly? If the neighbors on either side haven't complained and the owner puts it in the backyard it would be hard to justify prohibiting it on the grounds that it is unsightly because nobody would see it. Is the concern liability? Clearly if it's not on common property the association bears no responsibility for injuries. Is it a desire to keep yards from being cluttered with toys? Careful there because if you start regulating toys distinctly from other objects such as lawn mowers someone could allege that you are discriminating against children and hence violating the FHA.

In an effort to set rules that are flexible most documents have catch-all provisions that are purposely ambiguous as some others have already stated. The problem is by virtue of being ambiguous you invite challenges when you try to apply the rule to marginal cases. For example I don't know that I would consider a trampoline to be a temporary structure. When used in the context of housing, temporary structures are usually things like sheds, pole barns and the like.

The other problem you can come across with what goes on in someone's backyard is that property owners have a right to quiet enjoyment. This is particularly true when there's not a specific prohibition and you try to apply a catch-all. Let's assume it goes to court and the violator brings his neighbors to say that they don't have any problem with the trampoline. He then points out that the association doesn't prohibit hot tubs which are roughly the same size and arguably make more noise when being used. It's possible that a judge would say that although the association may be suffering in some theoretical sense the owner's right to quiet enjoyment overrides the ability to regulate what one can do in his own backyard with such specificity, particularly if the rule seems arbitrary.

In my opinion the previous poster who said that his association gives the tie to the property owner has it exactly right. Our lawyer used to tell us to communicate not litigate. If you don't have a rule, you're probably best not touching the issue. If you do have a rule or want to make one, be sure it's grounded in a concise objective for the betterment of the community.

Yes, Dennis, well said.

Tim, I would challenge that it is a "structure."

Being complex (which trampolines are not) and "constructed," does not make something a "structure."

A temporary, moveable piece of sporting equipment is not a "structure." Only in the very loosest of terms.

One wouldn't even be able to deny a request to put up one of those temporary above-ground pools with this wording, if the covenants do not address above-ground pools anywhere else.

The homeowner's request should be returned with the note that the ARC at this time has no jurisdiction over temporary sporting equipment.

John,

I hardly think an "improvement" would include a trampoline! However, if some think it may, then the board needs to adopt a rule to interpret the meaning of "improvement" and perhaps also "structure".

Mary -

I agree that the terminology "improvement" is vague and probably needs to be interpreted by rule by the BOD.

Just pointing out that very broad powers over change can, in fact, be the norm even in fee-simple (but attached dwelling) communities such as the one I live in where the owners actually own lots that extend beyond the footprint of their houses.

As an example, our CC&Rs, in the Architectural Standards section state:

"No exterior construction, alteration, addition or erection of any nature whatsoever shall be commenced or placed on any part of the Community .. .. .. .. "

In the definitions section of the documents, "Community" is defined as all individual lots as well as the common areas.

As such, even the simplest "alteration" to the original state of the property is forbidden without prior approval.

Thanks all for the very helpful info.

The HOs in the community are all under the impression that virtually any alteration to their home or yard requires approval -- I think we got that impression from the builder, so we do sometimes get requests for things that aren't already spelled out in the rules and sometimes things you probably would not to approve. I am just trying to get a feel for if we must approve something that's not specifically mentioned or if we still have grounds to deny ... catching on, though :-)

I think the developer used to use this clause as his "must submit an alt/mod" stick ... even if Homeowners wanted to install some shrubs or plants -- I'm not sure that's what was meant about landscaping, though.

The Developer shall establish an architectural review committee. Until construction plans and specifications are submitted to, and approved in writing by, the Developer and the Architectural Review Committee, (i) no Unit, building wall, or other structure or landscaping shall be commenced, erected or maintained, and (ii) no addition, change or alteration to any dwelling, other structure or landscaping shall be made, except for interior alterations.

Sorry ... I didn't mean to imply that it would ... was just showing what the builder used and why people think EVERYTHING needs to be approved -- not that they actually submit requests for EVERYTHING ... they just complain that they are supposed to.

Okay ... thanks for working with my learning curve on the rule thing ... let me take the inquiry a step further ...

If we have no rule in the CCRs or Rules and Regs against sheds and a HO installed one about a year and a half ago without approval, but was never sent a violation notice, if the association appropriately adopted an amendment not to permit detached storage, could this HO be required to remove it? Our bylaws have the standard Non-Waiver of Rights clause for enforcement.

And does it matter if, as in the above case, the HO would have a "loss of investment" versus a situation where a HO would no only lose the investment, but may have to incur additional cost to correct the infraction ... say if a HO installed wood-framed windows without approval and a new amendment was passed that allowed only vinyl windows ... would they have to remove/replace?

I suspect the option of grandfathering would exist, but would the BOD be required to?

That seems to be different from what many have offered regarding something like RV parking and such. If I bought the home when RVs were allowed (and I owned an RV) and the rule was changed, I wouldn't be allowed to park the RV. What makes the distinction between the two types of scenarios?

Got 'cha

With a "grandfather" on the examples above ... would they typically be until the item required replacement or would it be until title transfer?

Well, that's a whole 'nother question.

But to answer the one just above this, no, a new owner would NOT have to "correct" (or remove) the sheds or fencing or doors or windows that became out-of-compliance due to an amendment change.

It would not be until the items needed either repair and/or modification. In the case of a shed, you're probably looking at it pretty much staying forever. If it reaches the point where it has degraded enough to be removed, then the owner will not be able to replace it.

Of course, I talking about items that were not addressed or restricted previously, but an amendment was made to specifically restrict or control them.

Back to your "never approved" thing.

I'm a bit concerned, though, about your HO who installed a shed last year that was not approved.

While your documents do not specifically address sheds, doesn't it address any structures or modifications/alterations to the lot? Doesn't anything that falls into that category, whether specifically listed, like a "shed" or a "fence," require approval?

If the homeowner did not obtain approval, then it is not allowed.

The homeowner must submit the request forms and the ARC committee CAN enforce current specification requirements/restrictions against it, or it must be removed.