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Subject: Legal Use of 'Harmony' to deny Request

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JimS
(Delaware)

Posts:10

02/01/2007 12:58 AM
A resident has requested that he place a 100 gal above ground propane tank on his property. Preently, all tanks are buried and do not present an aesthetic issue. Although these propane tanks (nor above ground oil tanks) are specificy mentioned in the covenants, Other issues as no unattached sheds, etc, seem to show intent that such itmes may not have been originally desired by the builder. The covenants were obviously copied from the builders last community, and referred to natural gas lines, so this propane tank issue was not reelevant . Unfortunately, we just rewrote much of our covenants, and this issue never came up. As a background, if a resdient wants to put in a 100 tank the local propane dealers do not 'pay' for the tank. The owner must either buy the tank ($500) or rent it for about $200 a year.If the owner is only using about 100 gallons a year, the company doesn't make enough to warrrant assuming the cost for the tank. If on the other hand, the owner uses 300 or more gallons a year, the company will bury a 300 gal tank at no charge. This is the common practive. This financial disincentive will probably keep most residents from getting above ground tanks, hopefully. Since it is not in the covenants, the Board had discussed using the legal approach that an above ground tank would be not in 'harmony' nor asethetically pleasing within the community. I know this approach has some legal merit, but I do not know if it would in this case. Does anyone have any similiar experiences where the covenants did not specifically mention an issue and your Board declied to allow it baed on a basis other thab the covenants?

BrianB
(California)

Posts:1748

02/01/2007 6:24 AM
for me, a key question is do you have a covenant requiring "harmony"? In ours, for example, we have a small line that says something similar to "in a manner similar to the general appearance of the neighborhood". We have used that a time or two to deny some paint scheme or outdoor feature, or get someone to comply with trash clean up, yard design, etc.. If you have something, then you stand a better chance of enforcing a harmony decision. If you don't, then I would be the first to defy the HOA directive, based on the "THere was nothing in my contract that stated I needed to be in harmony with the neighborhood design" arguement.

LindaC3
(Florida)

Posts:526

02/01/2007 6:52 AM
Good Morning--- We have residents that have above ground tanks but of course each of lots are 3 plus acres.However we do have a clause that states "they shall be screened from view" ..For the most that is achived by landscaping...Of course this is my opinion only ,if the "norm" is that no one else has this why does this person want to be the first ??? Linda C

RogerB
(Colorado)

Posts:3724

02/01/2007 7:42 AM
Jim, since all existing tanks are buried and if the ACC decides an above ground tank would depreciate property values in the association there is a basis to not approve the request. Also, the cost to buy is probably less than the cost to screen.

Roger Borcherding Official HOATalk.com Sponsor DARCO Property Management (Colorado) (303) 925-0150 *See legal notice below (end of page) or go to www.hoatalk.com/legal

RonaldW
(South Carolina)

Posts:900

02/01/2007 9:24 AM
Posted By RogerB on 02/01/2007 7:42 AM Jim, since all existing tanks are buried and if the ACC decides an above ground tank would depreciate property values in the association there is a basis to not approve the request. Also, the cost to buy is probably less than the cost to screen. I agree with Roger.

Ron SC

JimS
(Delaware)

Posts:10

02/01/2007 10:09 AM
Thank you for your insigthful comments. I reread the covenants agin (100th time!) and we do have a clause in our architectural review section that states that 'harmony' will be a consideration in approving any structure or addtion to any lot. it laso states that each lot owner acknowledges that the Association has the authority, in a good faith effort to deny structures, additions, etc. Based on your comments, I do believe we would be on solid ground to deny, since all the others are buried. Also the cost for a lotowner to buy the tank would be far more than the cost of fuel they would consume in a year. Add on ot that the cost to 'hide' the tank if we madt that a stipulation. I will also confer with our attorney, and will send out a questionaire later this year to get residents' input on this and some other issues that have surfaced since we amended our covenants last year.Not a fun project! Thanks again, most helpful

LanceT
(Alabama)

Posts:121

02/01/2007 2:31 PM
It's really "Uniformity". This is one of the responsibilities of the HOA to maintain and it's most important purpose. Hence why all the rules are written in the first place to keep properties "uniform to a certain standard". Your are right in believing it is the legal right of the HOA to maintain such standards. Our HOA board/ACC can "deny" a person who submitted fence plans if the fence does NOT fit into the landscape or is similar to other members. We can also limit the color of paint they can use on their houses. If they don't get approval for an item then the HOA can make them remove it at THEIR cost. If the owner refuses, then the HOA can do the work and then CHARGE the owner for the work the HOA paid for. If the owner doesn't pay, the HOA can lien for the expenses. You may want to look into your rules about such scenerios. It should be there. It may be with the ACC responsibilities as well. I would say that you can deny them adding the above ground gas tank. As matter of fact, I would go as far as it is the responsibility of the HOA to do so.

Recovering Ex-President of a HOA

LuciusD
(Colorado)

Posts:139

02/04/2007 5:28 AM
UNIFORMITY uber alles!! Boy, that's right out of a George Orwell novel. Or is is out of a Fascist Manifesto?

hoatalk

Posts:490

02/04/2007 5:53 AM
Posted By LuciusD on 02/04/2007 5:28 AM UNIFORMITY uber alles!! Boy, that's right out of a George Orwell novel. Or is is out of a Fascist Manifesto? LuciusD: Our posting rules state, " Post any relevant topic you like, but please keep it clean, helpful, positive and friendly." Your quote above falls outside that definition. Yes, uniformity is part of why HOAs were established as you well know. This website is for solving problems and helping other community leaders, not for bashing the idea of HOAs or comparing them to fascists. There are plenty of conspiracy theory and HOA bashing websites where you can post those type comments. Please don't post them here. Thank You.

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DonN
(Michigan)

Posts:242

02/04/2007 1:47 PM
The subject of interpretation of restrictive covenants does have discipline. However, the interpretation depends upon the precise wording in the CC&Rs (generalizations don't work), any applicable state law, and the applicable case law. I am not an attorney but I have read many opinions by the Court of Appeals. The message is clear in Michigan. Perhaps it is easiest to work backwards by starting with the applicable case law. Each state may be different, but there are similarities among the states. In Michigan the rules for interpretation are repeated in almost every case that goes to the Court of Appeals or Supreme Court. At this time, those rules are: “Restrictive covenants are to be read as a whole to give effect to the ascertainable intent of the drafter, and strictly construed against grantors and the parties seeking to enforce the covenants. All doubts are to be resolved in favor of the free use of property. Courts should not infer restrictions that are not expressly provided for in the controlling documents." (Case citations eliminated) I write "at this time" because a new case may add to the case law as it did in Michigan recently with the addition of "to be read as a whole". To correctly interpret the CC&Rs, the case law for your state is the place to begin. You may not find much statutory law since property law seems to be grounded in common law. The language above is very interesting. If a use of the property is not strictly prohibited, then that use is authorized. The language also prevents an ACR Cmte from taking the "inch" in the CC&Rs and stretching it to a "mile". Many of the posts on this website are about the excesses of ACR Cmtes. So if the CC&R's do not specifically prohibit above-ground propane tanks and you believe they should, then the proper action is to seek an amendment to the CC&Rs.

Don Nordeen Governance of Property Owners Associations

RonaldW
(South Carolina)

Posts:900

02/04/2007 3:19 PM
Posted By DonN on 02/04/2007 1:47 PM .......... The language above is very interesting. If a use of the property is not strictly prohibited, then that use is authorized. The language also prevents an ACR Cmte from taking the "inch" in the CC&Rs and stretching it to a "mile". Many of the posts on this website are about the excesses of ACR Cmtes. So if the CC&R's do not specifically prohibit above-ground propane tanks and you believe they should, then the proper action is to seek an amendment to the CC&Rs. I understand what you're saying but think of the difficulty of predicting everything that a homeowner might attempt to do that would "downgrade" the community. The CC&Rs would be hundreds of pages long and still likely contain many loopholes. Just in your example alone, the first thing necessary would to be to define "above-ground propane tanks". Remenber you better exempt the 20 lb ones used for portable grills or you'll have a problem. And what if a homeowner intends to install an above-ground diesel or gasoline tank? You might have missed that one. If states begin to pass laws invalidating covenants, ACCs, etc. many communities will begin their slide to "slum" status. It's truly amazing what some folks will do on or to their properties.

Ron SC

JimS
(Delaware)

Posts:10

02/04/2007 5:26 PM
Thanks again to all who gave me their insight. (except LuciusD, whom I am glad to report doesnt't live in my coummunity! Harmony doesn't only apply to tangible, physical structures but also to how the residents interact. A Positive, constructive and professional exchange of ideas is paramount. I pity his HOA) At any rate, everyone makes some very good points. Harmony and rhythm have been upheld in some DE court cases from what a resident/builder/council member has related to me. The last thing we desire is to stifle residents' inventiveness to beautify and upgrade their homes. Hence we have historically sent out questionaires and consulted with our attorney to ensure our decisions reflect the majority perspective and are legally valid. I am meeitng with our attorney this week to get his take and to verify the harmony issue as it is described in our CC&Rs. This is a very helpful forum.

RonaldW
(South Carolina)

Posts:900

02/04/2007 5:37 PM
From our CC&Rs: SECTION 3 – Review and Approval of Plans and Landscape Plans. Any proposed additions and/or changes to the exterior of the property, landscaping, or buildings must be approved in writing by the ACC before work is begun. This includes, (but is not limited to), construction of residences and/or outbuildings, painting the residence or outbuilding, trim or shutters a different color, adding a porch or deck, installing or constructing a storage shed or outbuilding, constructing, installing, or modifying a fence, modifying or extending the driveway, etc. Note the phrase "(but is not limited to)". Most likely, the homeowner can be convinced to bury or screen the tank if you talk to him nicely. Neither is that expensive.

Ron SC

DonN
(Michigan)

Posts:242

02/05/2007 12:03 PM
RonaldW raises some very good points. CC&Rs have to be a live document that is periodically updated to reflect changing conditions to prevent "their slide to "slum" status". The same is true with ordinances in a village or municipality. Times change. Ordinances concerning wind turbine generators are added. Others are changed. My personal view is that each owners association should have a committee elected by the members (separation of powers is important) to provide that important legislative function by bringing the legislative issues annually before the members for decision by the members. Only the members should be able to approve amendments to the governing documents. Most community associations will have the default requirements in the ordinances of their municipality as a backstop.

Don Nordeen Governance of Property Owners Associations

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