Defunct HOA

Tim - I'm not exactly clear on your situation or your question. You say it's a voluntary HOA but covenants the Architectural Committee must approve any building project. If it's truly a voluntary HOA then you would not have to get their approval to do anything. Generally if you don't join you don't have to follow their rules. It would be odd to be subject to the HOA's rules regardless of whether or not you are member.

As to your question about liability, whether something is approved by the HOA or not really has no impact on anybody's liability. The liability for anything you build on your property is and remains totally and completely yours. An HOA, by virtue of approving an application, is in no way accepting liability for the construction and ongoing maintenance of what they approve. Their review is limited to making sure that the proposal fits within the association's architectural guidelines (hence the name of the committee) and the governing documents. In this case the word architectural is more a synonym for "aesthetically consistent" than "dictating and ensuring compliance with engineering standards." Despite the name, I'm yet to find an association where the docs require the AC to have an architect or licensed engineer as a member.

Unless the AC was grossly negligent in approving something that is completely and obviously unsafe (e.g. a nuclear waste processing plant) they are protected by the business judgment standard. While potentially dangerous, a swimming pool is quite routine in American neighborhoods. Besides, swimming pools are typically heavily regulated at the municipal level so all an AC has to do is approve it subject to local codes being followed. If you fail to follow code, that's your problem with the city.

Tim, defunct may merely mean inactive; usually somewhere in the CC&R's is a provision on how to dissolve the HOA. These typically require an affirmative vote of anywhere between 90 & 100% of the homeowners. If the steps outlined in the documents were followed and filed with the county then your HOA has been dissolved. If everyone simply threw up their hands and said we don't want to do this anymore and allowed the HOA Corporation to dissolve then the HOA is simply inactive. If that is the case it does not preclude a group of homeowners from resurrecting it and if that happens then you would need to apply to the new ARC for any projects you want to build going forward. So the first place to look would be at the County Recorder's office for all documents filed on your property and HOA name, you could also try a search of the County Court civil cases under the HOA name.

Paraphrasing Robert: “If it isn’t in writing it doesn’t exist.” It never ceases to amaze me that in this day and age if you buy a $1000.00 used car from a dealer you have to sign a piece of paper stating that there were no promises made by the salesman that are not included in the contract. Yet you buy a $100,000.00 + home and people are willing to take someone's word on something.

Tim,

Roger hit the nail on the head. Since this is a voluntary HOA if you choose not to join you are still subject to the restrictions contained in the covenants. The HOA can require even non-members to comply with the CCR; however, since the voluntary HOA is not active then the individual property owners may enforce the CCRs.

IMO, you are only obligated to abide by the restrictions contained in the covenants. Any additional restrictions of the architectural committee only apply to members of the HOA, whether voluntary or mandatory.

I agree Roger is right with his conclusion about the folks there are living in an involunatry HOA. Good point. I think it is more than just a little risky for a new guy on the block to buy and start putting in a pool. I assume then the pool builders position would be, "well, the HOA is involuntary by default so I can put in my pool." Don't know how this would sound to a judge and don't know that you want to just start changing your neighborhood as a new owner. I believe this will be the first pool, what is next, the first stable, the first in-house car repair shop, the first outside dog kennels. No, I think as a new owner a buyer has an obligation to be part of the neighborhood and if I was going to put in a pool and could do it, I would still ask for neighborhood reaction.

Re-read your deed. The covenants may govern the deed restrictions.
Whether there is an HOA now or not to enforce the covenants is not the point.

Sometime, somewhere, somehow, somebody's gonna bring it up.
Probably the day after you finish the pool.

IMHO - deed restrictions backed up by covenants will trump.

Now, WHO will enforce?

If there is no HOA but someone complains, then a local municipal authority would prevail (code enforcement, building enformcement, etc.) - or the courts.

He needs to investigate whether or not that "no pool" rule is really legal.

Robert, some owners have the misconception that the HOA can not enforce Covenants on any owner in the community whether they have elected to become members of the HOA or not. The HOA or any owner can chose to enforce the Covenants. If anyone is in doubt just read your Declaration of Covenants, Conditions and Restrictions.

Robert, the Board is not bound by the request of an owner. The Board should only decide to initiate a suit after exhausting all other avenues for enforcing violations have failed to bring satisfactory results. And their decision should be based on good business judgement. The President should never unilaterally take actions without the approval of the Board. At a court hearing the President and/or the managing agent can be called to testify on behalf of the HOA.

An owner can bring a suit if they chose; but I have never heard of this being done due to the costs involved.

To all interested in the vagaries of HOA management.

I just read this and it fits so well I just have to post it. A great Sociologist Max Weber described a certain process as, "proximate solutions to insoluble problems."

Doesn't that sound like how HOA's operate.

Robert, let me try to clarify your quandry.
First, the Board has a fudiciary responsibility to act in good faith using sound business judgement. So if there is a violation they should first try to resolve the problem with the homeowner. Many HOA's hire a management company to do this so as not to have neighbor pitted against neighbor (that dirty job is given to the MC)

Just like an owner not having funds for a suit, the Board can only bring suit when there are funds to cover the expenses involved. That may include the defendants if the HOA does not prevail in court. Thus, good business judgement must be exercised. Thus, it is not always a clear decision as to whether or not to try to enforce through the courts. I think most Boards would go to court to try to get an injunction to a) go onto the property and correct the violation and b)have their legal expenses and repair expenses assessed to the property.

Sounds good so far, but take the case I recently experienced where the owner was in violation for failing to maintain their yard (weeds, thistles, dead grass). They had moved out, filed for bankrupcy, andin the current financial downturn there is negative equity in the home. What should the Board do? Since the CC&Rs did not provide for going onto the property and correcting without an injunction from a judge; and due to being in bankrupcy the HOA attorney said do nothing. However, asside from the HOA, if I lived next door I would be a good neighbor. I would water their grass with my garden hose, fertilize their grass, pull their weeds, and otherwise keep their front yard looking good.

As to testifying in court the President and/or the managing agent would testify as a witness not necessarily as a representative of the HOA. I am not an attorney so I can not say for sure but have attended legal seminars and that is what the attorneys have presented. For example, in a case involing delinquent assessments an account ledger itemizing the assessments will be needed. A managing agent who prepared the ledger could be called as a witness to get it entered into the record.

"I also believe that nearly all enforcement is done through some kind of personal give and take by the violator and the owners or the Board, or the M/C or manager, and many times if that fails the issue is just ignored. That is how it seems to operate to me." good observation Robert, IMO