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Subject: Covenant language
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JamesD18


Posts:0


03/04/2019 2:58 PM  
Our HOA covenants are pretty old, dating back 25 years ago and have never been updated. One section regarding pools says that homeowners can, in fact, install a pool, however, it "shall" be inground. After 20 years, this instrument was renewed as a matter of law without any language change. Now, the word "shall" generally isn't used in legal documents and In 2013 the Supreme Court ruled that when the word "shall" appears in statutes, it means "may." So... I'm on the BOD and have a request from a homeowner to put up an above ground pool, based on this information I'm approving it, however, the other board members say no. If our covenants renewed automatically in 2014, the wording of such is encompassing legal terms as of renewal, 2014. "Must" is the only word that imposes an obligation, What say you? (I'm kind of playing devil's advocate here)
AugustinD


Posts:1575


03/04/2019 3:10 PM  
Posted By JamesD18 on 03/04/2019 2:58 PM
Now, the word "shall" generally isn't used in legal documents and In 2013 the Supreme Court ruled that when the word "shall" appears in statutes, it means "may." So... I'm on the BOD and have a request from a homeowner to put up an above ground pool, based on this information I'm approving it, however, the other board members say no.



-- I believe "shall" continues to be used in the language of new statutes nationwide.


-- Changing a covenant's "shall" to a "may" is a radical departure from the original meaning of the covenant. I would like to see this Georgia Supreme Court case. I suspect the case is more likely about a specific covenant, for a specific HOA, that has become outdated, so the Court ruled that the "shall" becomes a "may" for this specific covenant for this specific HOA.

-- I'd be surprised if the Georgia Supreme Court decision undid a buzillion CC&Rs throughout the state with this ruling you claim exists.

-- Until I had this Supreme Court decision in my hands, and barring more information, I would go with the current wording in the covenants and disallow the above ground pool.
RoyalP
(South Carolina)

Posts:698


03/04/2019 3:17 PM  
I will wager $10,000 and give 5 to 1 odds that 'shall' equates to 'must'

depending upon context.


eg.

request for a pool: said pool shall / must be 'in ground'

however

there is no REQUIREMENT to build a pool as in 'must build a pool' or 'shall build a pool'

but

IF a HO 'may' build a pool, then it must be / shall be .........


AugustinD


Posts:1575


03/04/2019 3:23 PM  
Some discussion in the vein of what the OP said, regarding "shall" being construed as "may":

https://www.faa.gov/about/initiatives/plain_language/articles/mandatory/

A Wisconsin case where the state supreme court interpreted a "shall" to mean "may":
https://www.wiappellatelaw.com/2015/03/02/when-shall-means-may-wisconsin-court-of-appeals-allows-mortgage-lenders-to-slow-the-foreclosure-sale-process/

A 2019 Georgia brief (non-HOA) discussing "shall" vs. "may" in Georgia law:
http://www.accg.org/docs/legal/ACCG%20Amicus%20Brief%20Final.pdf
JohnC46
(South Carolina)

Posts:8267


03/04/2019 3:26 PM  
James

Shall means must but worse than that, above ground pools are tacky and you are going along with it. What say you do other things to lower neighborhood value.
RoyalP
(South Carolina)

Posts:698


03/04/2019 4:00 PM  
Posted By AugustinD on 03/04/2019 3:23 PM
Some discussion in the vein of what the OP said, regarding "shall" being construed as "may":

https://www.faa.gov/about/initiatives/plain_language/articles/mandatory/

A Wisconsin case where the state supreme court interpreted a "shall" to mean "may":
https://www.wiappellatelaw.com/2015/03/02/when-shall-means-may-wisconsin-court-of-appeals-allows-mortgage-lenders-to-slow-the-foreclosure-sale-process/

A 2019 Georgia brief (non-HOA) discussing "shall" vs. "may" in Georgia law:
http://www.accg.org/docs/legal/ACCG%20Amicus%20Brief%20Final.pdf




What's the only word that means mandatory? Here's what law and policy say about "shall, will, may and must."
Print
We call "must" and "must not" words of obligation. "Must" is the only word that imposes a legal obligation on your readers to tell them something is mandatory. Also, "must not" are the only words you can use to say something is prohibited. Who says so and why?

Nearly every jurisdiction has held that the word "shall" is confusing because it can also mean "may, will or must." Legal reference books like the Federal Rules of Civil Procedure no longer use the word "shall." Even the Supreme Court ruled that when the word "shall" appears in statutes, it means "may."

-------------------------

The Prissel case involved two foreclosure actions brought by Bank of America, consolidated for appeal. In each case, the bank had elected to proceed under § 846.101, which applies to owner-occupied one- to four-family residences where the mortgagee has not sought deficiency. The statute provides that notice of sale “shall be given” within the six-month redemption period. In contrast, the other four sections pertaining to foreclosure sales provide that notice of the sale “may commence” during the redemption period. The question in Prissel was whether a mortgagee proceeding under § 846.101 is required to commence advertising the sale before the redemption period expires.

The court answered with a resounding No. As in Carson, the court had to determine whether “shall” in the statute is mandatory or directory. The court performed a lengthy analysis under Karow v. Milwaukee County Civil Service Commission, 82 Wis. 2d 565, 263 N.W.2d 214 (1978), a case that the Supreme Court cites in Carson without following its prescribed analysis. Karow dictates that courts examine four factors when determining whether “shall” is mandatory or directory: (1) the omission from the statute of a prohibition or penalty; (2) the consequences resulting from one construction or the other; (3) the nature of the statute, the evil to be remedied, and the general object sought to be accomplished by the legislature; and (4) whether failure to act within the time limit works an injury or a wrong.

--------------------------

It is well settled that the word “may” is generally permissive, while the word
“shall” is generally mandatory.33 Courts presume that the General Assembly is
fully apprised of the difference between the two terms, and that the General
Assembly’s choice to use one over the other is considered and meaningful.

---------------------------

It does appear that words no longer have any fixed meaning(s).

War is peace.

Love is hate.

Shall = may, but, does shall not = may not?

What the Felix, ... Over


bs-meter

GeorgeS21
(Florida)

Posts:1208


03/04/2019 4:50 PM  
James,

I’m not sure the provider of the D&O insurance that covers you and your Board would agree with your assessment ...you are really hanging it out by changing the definition to fit your belief.

One - shall means shall.
Two - above ground pools are hideous.
KerryL1
(California)

Posts:6350


03/04/2019 5:19 PM  
You need to show us some sort of citation showing that "shall" means "may" in the context of covenants, bylaws, etc.
JamesD18


Posts:0


03/04/2019 5:33 PM  
I ran it past a friend who just retired as a Judge. It appears the argument does have merit and can be challenged especially since the HOA had the opportunity to clarify any section of the covenants prior to the 20-year renewal and failed to do so. Even the US SUPREME COURT has ruled that "Shall" means "May." Apparently, there's a case pending on this very matter regarding HOA's, I'll keep an eye out for it.
GeorgeS21
(Florida)

Posts:1208


03/04/2019 9:35 PM  
Let us know ...please.

I’m gonna stick with shall means shall.

Shall mean may sounds as nutty as may means don’t.
AugustinD


Posts:1575


03/05/2019 7:06 AM  
Posted By JamesD18 on 03/04/2019 5:33 PM
Even the US SUPREME COURT has ruled that "Shall" means "May."


The U. S. Supreme Court has made no such sweeping ruling. At most, it examined some lower courts' reasoning, looked at the context and other factors, and said in xyz particular instance, the "shall" is a "may."

Royalp is correct about context mattering.

The Wisconsin case I linked gives four factors that are considered when determining whether "shall" is "mandatory or directory":

"(1) the omission from the statute of a prohibition or penalty; (2) the consequences resulting from one construction or the other; (3) the nature of the statute, the evil to be remedied, and the general object sought to be accomplished by the legislature; and (4) whether failure to act within the time limit works an injury or a wrong."

For the sake of argument, does your HOA have penalties for violating the covenants?

Else if you are determined to let this guy have an above ground pool, and you have a board majority agreeing with you, then your board need only hope that no member takes your Board to court for disregarding the covenants. You might want to put the HOA insurer on notice of the board's approval of an above ground pool, because the board thinks "shall" means "may" everywhere "shall" appears in your HOA's governing documents.



RoyalP
(South Carolina)

Posts:698


03/05/2019 7:17 AM  
AugustinD,

For fire prevention (NFPA) and general construction code(s) purposes:

SHALL most definitely equates to MUST regardless of 'context'.

? Shall we debate the 'oxford comma' ?

AugustinD


Posts:1575


03/05/2019 7:24 AM  
RoyalP, kewl. I'd say a court would agree, since these codes are typically adopted state by state, and states impose penalties for failure to comply with such codes, consistent with the Wisconsin supreme court's reasoning.
GeorgeS21
(Florida)

Posts:1208


03/05/2019 3:12 PM  
James - I may have missed what state you are in?
GenoS
(Florida)

Posts:2892


03/06/2019 11:09 AM  
He's gone. Another satisfied customer.
GeorgeS21
(Florida)

Posts:1208


03/06/2019 4:50 PM  
Was gonna try and determine whether his CCRs had been extinguished by MRTA ...
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