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Subject: HOA Denied Our Pool
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Author Messages
AlexL3
(Nebraska)

Posts:4


06/08/2018 6:38 AM  
We are wanting to put an above ground pool, 32' x 16' x 52" and our HOA has denied us. Their denial reason was: "Per covenants, no swimming pool may extend more than 1' above ground level".
The covenants do say that, however, it does list that above ground pools need written approval, here is the paragraph on pools:
"No swimming pool may extend more than one foot above ground level. Subject to the provisions of paragraph 2 of this Article, any swimming pool allowed by this paragraph shall be fenced. In addition to the requirements of paragraph 2 of this Article, before any above-ground swimming pool may be installed on any Lot, the Owner thereof shall first obtain written approval by the Declarant of an appropriate landscaping plan.".

I emailed them back asking why the list above ground pools with written approval of their denial reason was the 1' above ground level because above ground pools will certainly be over 1' tall. They responded "Above ground pools are not allowed per covenants. Only ground.".

How can this be interpreted? My understanding is, it doesn't list that only in ground pools are allowed and it lists that above ground pools are allowed with written approval from the HOA. We have our backyard fenced in, sent our plans and request and we believe the denial reason is unreasonable since an above ground pool will be over 1' tall. Yes it does list that pools can't extend above 1', but why have the clause that above ground pools need written approval then?

Any help would be greatly appreciated! Thanks!
GlenM4
(Tennessee)

Posts:79


06/08/2018 6:50 AM  
Pretty much you can have above ground and in ground pool. For above ground it is up to the hoa(arc) if they wish to allow it. From there responce either they dont know they can approve them, or they dont want to approve them. I would find out which one it is. If they dont want to, then you would have to work to change this. As in get on the hoa board along with others that would approve above ground pools
JaredC
(Texas)

Posts:32


06/08/2018 7:09 AM  
Just because the covenants say a thing doesn't mean that thing is enforceable. Pools are expensive and if you have that type of cash to purchase one then you might consider paying an HOA attorney for a consultation ($100-$200) to realize what your options really are.
AlexL3
(Nebraska)

Posts:4


06/08/2018 7:18 AM  
We don't have that kind of money lol, that's why we want an above ground pool as a cheaper route, instead of an in ground that will cost a fortune.

We might have to contact an attorney, but wanted to see if anyone (free obviously lol) had any thoughts or experience with similar situations.
DouglasK1
(Florida)

Posts:1131


06/08/2018 7:21 AM  
Unfortunately, you can't assume that CCRs are well written and proofread. The developer's goal is often to take raw land and sell it is lots as cheaply as possible, and this extends to creating the governing documents. They are often a hodgepodge of cut and paste sections from boilerplate CCRs or other CCRs that the person who creates them has laying around, with little effort given to ensuring internal consistency. In this case I would expect the more restrictive provision to control, so no above ground pools over 1 foot would be allowed.

Even if interpreted to allow above ground pools with ARC approval, that doesn't mean the ARC has to approve any, as long as they are consistent. As Jared suggested, if this is important to you, a legal consultation might be in order.
FredS7
(Arizona)

Posts:831


06/08/2018 9:14 AM  
I interpret the sentences to mean: above-ground pools less than 1 foot tall (which would be a wading pool!) are allowed with permission and must be fenced.
JohnC46
(South Carolina)

Posts:7552


06/08/2018 2:33 PM  
Alex

That covenant was aimed at not allowing any above ground pool but with the one foot tall restriction, still allow wading pools.

Yes you can have an above ground pool but it must not be taller than one foot. The rule is firm and proper. You just do not like it.
JaredC
(Texas)

Posts:32


06/08/2018 2:43 PM  
IDK JohnC46. Our covenants here in Texas contain many rules that are either outdated and/or unenforceable. Bad governing documents are the rule not the exception.
TimB4
(Virginia)

Posts:15812


06/08/2018 3:30 PM  
Alex,

Two questions:

1) What are the provisions of Paragraph 2 (referenced in your citation)?

2) Are you still under declarant control?
AlexL3
(Nebraska)

Posts:4


06/08/2018 3:44 PM  
Paragraph 2 is long so I have uploaded a screenshot https://ibb.co/mJNbOT
We are still under declarant control (I believe). The HOA is still being ran by the developer as this is a new development and there are still some lots to be sold and constructed on.

I know that I don't like the rule lol, I just want a cheap pool for my kids to enjoy themselves while it's hot. My yard has a vinyl 6' privacy fence, so an above ground pool wouldn't be an eye sore for others outside since it is enclosed and wouldn't be visible to anyone. So I am not sure what the issue would be for it not to be allowed.

Thanks again for everyone's feedback.
MelissaP1
(Alabama)

Posts:7388


06/08/2018 4:10 PM  
Well there are several reasons pools are an issue and it's not just sight. What if it broke/sprung a leak? Are you prepared to pay for any damages that may cause? Which the force of water can be pretty strong and could take down a fence or flood inside a house. The added noise is a factor. No one wants to live where your going to have screaming kids running about. I live next door to a pool now and they are adults who own it. It's terrible when they decide to throw a party. I get trash and pool toys in my yard. (If not trespassers).

Pools do NOT add "value" to a home. Most realtors will tell you this. Maybe more attractive to buyers but not more money. If the pool is installed on common area, it could cause liability issues to ALL your neighbors/HOA. In our HOA, you own the house and the lot it sits on. You have exclusive use to the area around your home. So what if there was an accident at your pool by a visitor? Who do they sue you or the HOA? Or do you sue your HOA to collect on their insurance policy?

So yes denial of the pool is NOT because they are stuck up prudes or they hate you. It is in fact reasonable and protective reasons. It sucks you can't have a pool. It would suck more if your pool kills someone...

Former HOA President
BenA2
(Texas)

Posts:484


06/08/2018 4:15 PM  
I think the covenant is a little ambiguous but, taken literally, it says that NO pool can extend higher than one foot above the ground. It does not make an exception for above ground pools (even though that would be unheard of) but it does require a landscaping plan if the pool is above ground.

I interpret that to mean that if the pool extends above the ground, up to the one-foot limit, they want landscaping around it. My guess is that the intent is to only have in-ground pools but they realize that in-ground pools are almost always slightly above-ground and they want it limited to one foot.

It might be worth talking to an attorney because states have different rules on how courts rule on ambiguous covenants.
BenA2
(Texas)

Posts:484


06/08/2018 4:22 PM  
Posted By MelissaP1 on 06/08/2018 4:10 PM
Well there are several reasons pools are an issue and it's not just sight. What if it broke/sprung a leak? Are you prepared to pay for any damages that may cause? Which the force of water can be pretty strong and could take down a fence or flood inside a house. The added noise is a factor. No one wants to live where your going to have screaming kids running about. I live next door to a pool now and they are adults who own it. It's terrible when they decide to throw a party. I get trash and pool toys in my yard. (If not trespassers).

Pools do NOT add "value" to a home. Most realtors will tell you this. Maybe more attractive to buyers but not more money. If the pool is installed on common area, it could cause liability issues to ALL your neighbors/HOA. In our HOA, you own the house and the lot it sits on. You have exclusive use to the area around your home. So what if there was an accident at your pool by a visitor? Who do they sue you or the HOA? Or do you sue your HOA to collect on their insurance policy?

So yes denial of the pool is NOT because they are stuck up prudes or they hate you. It is in fact reasonable and protective reasons. It sucks you can't have a pool. It would suck more if your pool kills someone...



The board or committee's decision should be based solely on the covenants and not personal opinion on pools in general?
MelissaP1
(Alabama)

Posts:7388


06/08/2018 4:25 PM  
Well they are basing their decision on the CC&R's in this case. I am just stating that the reason is also beyond just sight issues why the rule was created in the CC&R's. It's in the restrictions for a reason. The OP thinks it's based on sight issues. Just stating it's more than just sight issues when the CC&R's state the board can approve/deny.

Former HOA President
AlexL3
(Nebraska)

Posts:4


06/08/2018 4:28 PM  
I'm sorry Melissa, but any kind of outside activity can produce noise that can inconvenience neighbors, not just a pool. Besides that, an in ground pool doesn't make less noise than an above one. Also, as I have stated, by backyard is completely fenced in with a 6' privacy fence. If you are in my backyard without my knowledge you are trespassing and it's impossible to be in my neighbors' yard because of the fence. As far as visitors go, if they get hurt we have insurance. Same goes if the pool destroys any kind of property. An in ground pool can destroy property too and a visitor can still get hurt. So these points don't seem valid to me either as to why an above ground pool can't be used, those same problems can occur with an in ground.
MelissaP1
(Alabama)

Posts:7388


06/08/2018 4:52 PM  
Above ground pools look a bit cheap to many people. They aren't permanent structures. Attract bugs as their maintenance and care aren't the same as a ground pool.

Overall the HOA can say no and they did.

Former HOA President
BenA2
(Texas)

Posts:484


06/08/2018 5:12 PM  
Posted By MelissaP1 on 06/08/2018 4:52 PM
Above ground pools look a bit cheap to many people. They aren't permanent structures. Attract bugs as their maintenance and care aren't the same as a ground pool.

Overall the HOA can say no and they did.



Why would a bug care if the pool is in or above ground?
ArtL1
(Florida)

Posts:89


06/08/2018 5:26 PM  
Posted By DouglasK1 on 06/08/2018 7:21 AM
Unfortunately, you can't assume that CCRs are well written and proofread. The developer's goal is often to take raw land and sell it is lots as cheaply as possible, and this extends to creating the governing documents. They are often a hodgepodge of cut and paste sections from boilerplate CCRs or other CCRs that the person who creates them has laying around, with little effort given to ensuring internal consistency. In this case I would expect the more restrictive provision to control, so no above ground pools over 1 foot would be allowed.





In my experience, you can assume the opposite. i.e. Your governing documents were probably cut and pasted together by either an idiot, someone who just doesn't care, or a poorly trained monkey, and are not "proof read" until the members start looking closely at them, probably sometime after turn-over.

The only thing that might work in the OP's favor is, did the HOA (particularly under developer control) approve any above ground pools for other members in the HOA?
GeorgeS21
(Florida)

Posts:196


06/08/2018 6:52 PM  
Maybe I’m missing something - but ....apparently this is simply another case of someone not wanting to follow the rules.

Why always looking for angles to do something that you signed up not to do.

I don’t get it - just follow the rules.
MelissaP1
(Alabama)

Posts:7388


06/08/2018 6:57 PM  
I moved into an HOA and now I can't my way? Oh how unfair it all is...

Former HOA President
BenA2
(Texas)

Posts:484


06/08/2018 7:14 PM  
It sounds like the OP wants to follow the rules but they are unclear. I think following the rules and defending your property rights are both important. Sadly, many HOA leaders don't accept the notion of property rights.
GeorgeS21
(Florida)

Posts:196


06/09/2018 6:06 AM  
Ben,

I disagree - the one foot restriction, while oddly written, is pretty likely there to prevent above ground pools.

Above ground pools are, IMO, ugly and a less expensive alternative to an I ground pool. They do attract more insects because they water that overflows, doesn’t drain into a drainage return for the pool - obviously, there may be exceptions.

We see a lot of above ground pool questions on the site - usually they relate, as this one does, to a homeowner wanting to build one even though it is not allowed, or has been disapproved.
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