HOAleader.com - Tip of the Week - July 27, 2012
Published: Fri, 07/27/12
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HOA Owners Argue Over Temporary Structures--But It's
a Dangerous Debate
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In this week's tip, we begin to answer a reader's
seemingly simple question about whether a playset
is a temporary structure. But there may be way
more going on behind this question than just an
innocent inquiry.
"In typical CC&Rs, it's not that defined," says
James R. McCormick Jr., a partner at Peters &
Freedman LLP in Encinitas, Calif., who represents
associations. "They usually ban temporary structures
and leave it open for the HOA to define."
In other states, it's more common to ban permanent
structures. "Generally, I think the definition of
temporary structure varies wildly," says Jim Comin,
president of The Management Trust-CDC, an association
management firm in Kirkland, Wash. "But it's common
to say you can't put permanent structures in, but
you can put in temporary structures. Then there's
the question of what's temporary? Is there a
period of time [after which] temporary becomes
permanent? Is it if it's bolted in? For me, the
question is how it's affixed and how long it's there.
If it's concreted in, you can figure out early how
long it's going to be there. You can say I don't
think that's going anywhere. But over time, I think
the differentiation is whether it's there
constantly or intermittently."
Though many HOAs have vague language, it's probably
better to be more direct. "The best thing is to be
as precise as possible in the governing documents,
in the bylaws themselves, or in your rules,"
advises Nathaniel Abbate Jr., a partner at Makower
Abbate & Associates PLLC in Farmington Hills, Mich.,
who represents associations. "You might say,
'There shall be no temporary structures, including
but not limited to shacks, sheds,' and if you want
to include a play structure, put that in there
as well. The test is always whether something
changes the character and nature of the community."
What are the arguments when it comes to playsets?
"I think you can make the argument that they're
permanent because most are anchored to the ground,"
says Abbate. "Most restrictions that go to temporary
structures make it clear you can't have a tent or a
tarpaper shack to store materials; you're trying to
ward off temporary intrusions on the look of the
community. So if there were a set of restrictions
that spoke only to temporary structures, I don't
know for sure someone could say you couldn't have
a playset. Also, if some playsets have been permitted,
you'll have a harder time restricting them."
However, our reader's question raised red flags
among our experts. Find out why it could lead to
litigation by reading our new article,
http://www.hoaleader.com/members/741.cfm
Best regards,
Matt Humphrey
President
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Click here to read full article:
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