Go Cart Track

You have a fiduciary duty to enforce the covenants. This is one in particular that you must enforce because you are receiving complaints.

The home owner may be violating a city/county ordinance by operating the track and allowing non family members to use it. That tends to make it a public function.

So continue on with the formal letters and violation procedure, and at the same time talk to your city and county officials. If it is against code, they will also step in and help to shut it down.

Pursue all avenues and maintain a paper trail so you won't have to worry about being sued for negligence.

Chad, I agree with you on the "noxious" part. I think i could argue that a go kart track can't be considered "noxious" (however, one could make an arguement that the gasoline fumes or CO produced could be noxious...).

However, it's the rest of the covenent that nails the owners to the wall.

"nor shall anything done thereon which may be or become an annoyance or nusisance to the neighborhood".

basically, that's the HOA catch all clause. I can easily see that go kart noises, revving engines, clouds of oily smoke from the engines, all through the day could be annoying or a nuisance.

So, while not noxious, it could very well be considered annoying or a nuisance. (and yep, I will agree with you, almost anything could be too...it's a poorly defined rule. future owners should refuse to buy a house there.)

Thanks for the feedback - the major issue right now is the board failing to do their job if we do not handle the complaints we have received?

Another option discussed was to take a neighborhood vote on allowing the go cart track. I feel this would open a whole lot of issues - all depending on where you lived in the neighborhood.

We also wonder about our property values - if I tried to sell my house and they are using the track - you can hear in my backyard - an some ask what's that noise. It's a private go cart track - I do not think it would be a selling feature for my house.

Thanks,

Denise

Denise,

I would suggest as Roger had posted. I would continue with the violation letters and see if the homeowner has submitted a ARC request form if not then it wasn’t approved and he must removed.
If it was approved they your HOA made a mistake and you will have to deal with it.
William has given some very good advice, keep us posted as too what you decide to do.

Best of luck
Chuck W.

Denise, this is a fine against the property not against the owner using the go cart track. I would give them so much time to correct. Also you need an established a fine policy such as increasing every day or doubling every X days and follow that policy after it has been established and provided to all owners. I do not like the idea of fining after each useage.

DeniseL,

As written, your by-laws state the activity has to become an annoyance or nusisance to the neighborhood. So define neighborhood Is it vicinity, region, etc.)? I cannot imagine the intent of the by-law was that something must be an annoyance to the entire community because that is a virtual impossibility. I imagine the intent was that something must be an annoyance to the vicinity. If the complaints are in writing, and from owners within ear and eyeshot of the go-cart track, I say enforce, fine, no vote to owners.

Best of luck,
GeraldT1
NNJ

Ps
I can spell, just having keyboard issues

chad raises a good point in that without an absolute definition (which will require the use of words that require absolute definition), such things as "business", "Annoyance", "illegal", "exceed", etc. must all be judged as to their true definition. What is annoying to you may not be annoying to me, for example, so what is the exact definition?

Things to consider when working within such rules/regs:

The reasonable man rule: A judge would typically ask "what would a reasonable man" decide/assume about this word. For instance, "illegal". It would likely be reasonable for a man in the US to assume that an illegal activity would be something that was currently against US Law/Statute. One could argue "well, it's not illegal in Kumizamistahn, so...", and the judge would likely rule against such as arguement as "not reasonable". This is similar to the "common use" rule, which means the judge will look at how such a term is commonly used in society, other documents, etc.. For instance, I may find children under 18 annoying, but a judge will likely rule that in general, society finds them not annoying, and my request they be banned from the HOA unreasonable.

Civil law versus Criminal law: HOA cases are typically Civil cases, and in civil courts, there is a difference. the idea of being "innocent until proven guilty, beyond a shadow of a doubt" doesn't exist. In Civil law, basically, both sides are considered neutral to start, and all one needs to do is show a preponderance of evidence (ie, more guilt than innocence) to get a conviction. Even a weak case (my neighbor's clarinet playing annoys me) could be enough for a conviction, IF the defendent does nothing to prove their innocence (ie, evidence that the noise level is less than an average TV, they only play at 3 pm, that other neighbors closer to the source have no issues, etc.). In general, both sides in a civil case musts present arguements. If not, the non arguing side will often lose.

finally, remember that despite ANY law, a judge is a power unto themselves. They need not follow the rule of law, statutes, etc. in their court, if they don't wish to. Is it wrong? yes. Can they do it? Yup. Can you fight it? Yes, at your cost of money, time and travel through the court system. They can add rules, ignore laws, do whatever they want, and your only recourse will be to spend more money suing them in the same system they are part of.

Chad is right...definitions matter. If you don't have them in your docs, be prepared to argue using the above information.