HOAleader.com - Tip of the Week - October 30, 2020
Published: Fri, 10/30/20
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HOA Documents Permit This, Other Owners Have It, But the Board Wants to Say No
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In this week's tip, we address an HOAleader.com's question about whether the board must permit new homeowners to do something that comports with the governing documents and that many long-time owners have done—adding an outbuilding located according to a certain setback—but that the board now thinks looks unattractive.
The new owners are claiming the board is only selectively enforcing the rules.
What gives?
Our first note is that two of our experts take issue with the claim of selective enforcement. It's often mentioned, but it may not really be something homeowners can rely on under some states' laws.
"I've often heard that term from residents of communities who call me to complain about their association—and these are situations in which I don't represent the association," notes Harry Styron, a community association attorney at Styron & Shilling in Ozark, Mo. "I explain that's no defense for them.
"Most condo and other kinds of CCRs have a nonwaiver clause that says the failure to enforce a covenant doesn't undermine its validity or the ability of the association or another owner to enforce it in the future," he explains. "Under Missouri law, it is possible for a person whose property is bound by a covenant to prove the covenant is abandoned by nonuse or nonenforcement. But that requires proof over a long period of time or that widespread violations have taken place. It's really proving that there's been a changing condition of the neighborhood or that the plan of development has changed over time by the way the property owners chose to interpret that provision. That's acquiescence.
"I've seen that with portable buildings where everybody's got one and with accessory structures, sometimes when no building is permitted if it's not connected to the main building," states Styron. "Another example is covenants that used to require wooden shake shingles, which are fire hazards. Nonconbustable shingles that look the same are available now, and often people are replacing the shake shingles with those.
That's similar to the landscape in Michigan. But more importantly, does this board have any right to deny something many other owners already have—and that its documents permit? Find out in our new article: https://www.hoaleader.com/members/4215.cfm
Best regards,
Matt Humphrey
President
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Upcoming Event
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Enforcement of Your HOA's Rules During a Pandemic:
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Recent articles posted at HOAleader.com:
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Group Home Must Be Accommodated By HOA, Federal Court Rules
A federal court has held that an HOA can't penalize a group home for sober living for violating its use restrictions regarding residential use, noise, and parking. Instead, the HOA must provide reasonable accommodations. Here, we explain the case and ask our experts to sort out the ramifications for HOAs.
Click here to read full article:
https://www.hoaleader.com/members/Group-Home-Must-Be-Accommodated-By-HOA-Federal-Court-Rules.cfm
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Paying a Visit to an HOA Bully of an Elderly Neighbor: Not the Best Solution
In week's tip, we answer an HOAleader.com reader's question about a bully who literally parked in his elderly neighbor's driveway claiming he had every right to do that because it was common area. (It's not.)
Click here to read full article:
https://www.hoaleader.com/members/Bad-HOA-Owner-Behavior-But-Board-Member-Visit-Wise.cfm
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Why Your Condo/HOA Should Be Ready for Key People to Disappear (Plus, We Have a 5-Step Plan)
Your community needs a continuity plan. What do we mean by that? One of our experts recently suffered the loss of a community's president to COVID-19. It was a sad loss and one made more difficult because the community had done no planning for the what-ifs. What if a leader suddenly becomes unavailable to serve? Are there documents and information in that leader's possession others will need? If so, how will you gain access to them?
Click here to read full article:
https://www.hoaleader.com/members/Has-Your-Condo-HOA-Board-Done-Necessary-Continuity-Planning.cfm
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HOA/Condo Elections in the Time of COVID-19: How to Plan for and Execute a Successful Election Now
Watch this information-filled webinar and you'll learn valuable, workable tactics you can implement immediately to make your election process smoother, more successful, and less contentious--all during a pandemic.
Click here for more info:
https://www.hoaleader.com/products/hoa-condo-elections-covid19-b.cfm
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HOAs Waive Restrictions on Above-Ground Pools--Temporarily
The Wall Street Journal is reporting that some HOAs are waiving restrictions--but only temporarily--against above-round pools due to COVID-19. Sounds accommodating, with some community pools closed. But this also seems like a hard genie to put back in the bottle. Are temporary waivers wise? Here, we ask our experts.
Click here to read full article:
https://www.hoaleader.com/members/HOAs-Waive-Restrictions-on-AboveGround-PoolsTemporarily.cfm
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