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Subject: Blowback from trying to enforce CCRs
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BrettH3
(South Carolina)

Posts:12


04/05/2019 10:41 PM  
Our community is about 14 years old and the previous boards did not enforce many of the CCRs. Now this board does because it was the biggest complaint from homeowners. One CCR we’re trying to enforce is no basketball hoops in the streets or on sidewalks because of safety issues. One woman in the neighborhood is agitating the neighbors, demanding the board members names, implying legal action because “ if the rules weren’t enforced for the past 14 years they’re not a problem now.” We’re trying to clean up the community, improve home values, and enforce the rules we were elected to enforce. The blowback has been strong. Ideas? Suggestions? Is the fact that previous boards didn’t enforce rules going to prevent us from doing so now?
South Carolina...
TimB4
(Virginia)

Posts:16479


04/06/2019 3:14 AM  
Posted By BrettH3 on 04/05/2019 10:41 PM

One woman in the neighborhood is agitating the neighbors, demanding the board members names, implying legal action because “ if the rules weren’t enforced for the past 14 years they’re not a problem now.”




To be honest, it's a good legal argument.
There have been cases where failure to enforce made a covenant invalid.

Of course, it's something that would actually have to go to court to happen and most who threaten rarely file.

My advice: continue with the enforcement but also check with your attorney the chances of winning if the person does file.
MelissaP1
(Alabama)

Posts:8599


04/06/2019 5:17 AM  
Also this doesn't improve home values. It just improves the houses be more attractive to potential buyers. So know what your purpose is at the end of all this enforcement. It's to make so your HOA looks good. Otherwise, what if someone's home doesn't sell at their price and blames the HOA? That's what your setting yourselves up for if you keep saying "Values".

Former HOA President
GeorgeS21
(Florida)

Posts:1285


04/06/2019 6:02 AM  
And, again, I strongly disagree with Melissa.

Of course a well run HOA with consistent properties that are in alignment with covenants improves home values.

Melissa is helpful in many of these discussions, but she is inaccurate in this regard.
MarkM19
(Texas)

Posts:419


04/06/2019 6:28 AM  
Because prior boards did not do their jobs does not mean that yours should do the same. The Rules are the Rules. If they do not like them they can try and change them. The main thing is you have to be consistent. Remind them of your Fiduciary Duties.

If you don't have critics you are probably not doing your job as aboard member.
TimB4
(Virginia)

Posts:16479


04/06/2019 6:46 AM  
Posted By MelissaP1 on 04/06/2019 5:17 AM

Also this doesn't improve home values. It just improves the houses be more attractive to potential buyers. So know what your purpose is at the end of all this enforcement. It's to make so your HOA looks good. Otherwise, what if someone's home doesn't sell at their price and blames the HOA? That's what your setting yourselves up for if you keep saying "Values".




This has been discussed before.

There are many forms of value (perceived, financial, etc.).

If the houses are more attractive and sell quickly, this may result in higher bids.
If the houses are more attractive and sell quickly, this may help the homes maintain their value.


Melissa often refers to the financial value.
However, the other values a buyer has can influence the financial value (at least to them).



SheilaJ1
(South Carolina)

Posts:110


04/06/2019 7:25 AM  
Please copy and paste the covenants where it states no hoops allowed?

Or are you just another HOA that thinks they can make up rules that go beyond the covenants?

Please quote it here but it appears you have no grounds to enforce your made up rule.
GeorgeS21
(Florida)

Posts:1285


04/06/2019 7:32 AM  
Sheila,

You are negative without cause - MANY CCRs specifically call out hoops as not being allowed, for both aesthetic, noise and/or safety reasons.

Brett,

Post your (redacted name) CCRs if you like as we all like to see language from other HOAs, but don’t let the negative tone from Sheila slow you from addressing the issue in your HOA. Every neighborhood I have lived in had some form of restriction on b ball hoops.

KerryL1
(California)

Posts:6632


04/06/2019 7:45 AM  
I'd like to see the CC&R language too. Thank you, Brett.
CathyA3
(Ohio)

Posts:459


04/06/2019 7:56 AM  
The OP should also check his governing documents to see if there is language that specifically addresses past failures to enforce CC&Rs. Referring to remedies for violations our bylaws state, in part, "Any and all of such rights and remedies may be exercised at any time, from time to time, cumulatively or otherwise, by the Association."
AugustinD


Posts:1932


04/06/2019 8:03 AM  
I too feel there is a large legal issue here with regard to the 'abandonment of covenants.' The HOA's CC&Rs may permit the HOA to take a member, who is allegedly violating the covenants, to court, but the member will then speak (understandably, and with legal clout) of the covenants being abandoned. It's true some members will be frightened by the mere threat of legal action and cave in.

Brett, your HOA can certainly try. But if one of the members who is allegedly violating the covenants for many years came here to hoatalk[dot]com looking for advice, I would tell him or her to go represent himself pro se and speak of abandonment of covenants. The law is on this person's side.

If I were on Brett's board, I would recommend sending a letter to all members explaining the desire to restore covenant enforcement; that new owners would be expected to comply with the covenants; that long-time owners would be cut some slack but the Board would hope they understand the situation and also follow the covenants.

The concern I have with the basketball hoops is that it may violate federal and state fair housing law: Disallowing kids playing in the streets (yes, the streets) is typically seen (by HUD) as a restriction on families with kids, designed to keep families with kids out of the HOA. It may be unlawful familial discrimination. If the HOA starts trying to enforce this rule, it may be a valid Fair Housing Act claim against the HOA. I am not 100% sure on this. I too would want to see the wording.



RoyalP


Posts:0


04/06/2019 8:07 AM  
Basketball AND Waste Containers

basketball-court-stencil-for-driveway-basketball-court-driveway

The HORROR ... The HORROR


PEOPLE ... ACTUALLY ... HAVING FUN ... (and living)
GeorgeS21
(Florida)

Posts:1285


04/06/2019 8:37 AM  
Kinda irrelevant, IP.

Your photo shows a rather large house, that might even be hidden from the street ... I don't want trash cans out, I don't want to hear loud voices and repetitive bball bouncing at 11 pm, etc, etc.

This forum is for positive HOA assistance - not negative.
RoyalP


Posts:0


04/06/2019 9:06 AM  
Posted By GeorgeS21 on 04/06/2019 8:37 AM
Kinda irrelevant, IP.

Your photo shows a rather large house, that might even be hidden from the street ... I don't want trash cans out, I don't want to hear loud voices and repetitive bball bouncing at 11 pm, etc, etc.

This forum is for positive HOA assistance - not negative.




For noise: call the AHJ to enforce noise ordinance(s)

For trash: call the dept of health

For 'perception' and 'feel good': call the HOA


and ........

LAUGH



ps. the COUNTY in which i reside governs noise between 10pm and 6am with an 'iron fist' even including hvac units limits on dB
GenoS
(Florida)

Posts:3233


04/06/2019 10:11 AM  
Posted By RoyalP on 04/06/2019 8:07 AM
Basketball AND Waste Containers

The HORROR ... The HORROR

PEOPLE ... ACTUALLY ... HAVING FUN ... (and living)

When I look at that picture I can almost hear the noise. If you don't mind it, great!
JohnC46
(South Carolina)

Posts:8729


04/06/2019 10:31 AM  
It is quite common for SC (and other) HOA's to have restrictions on basketball hoops: From our Covenants:

GARDEN AND PLAY EQUIPMENT: No vegetable garden, hammock, statuary, or play equipment (including, without limitation, basketball goals) shall be constructed, erected, or maintained upon any Lot unless the type and location thereof has been previously approved by the ACC.

AugustinD


Posts:1932


04/06/2019 11:10 AM  
I am glad some here raised the issue of noise from basketball bouncing. Basketball bouncing has been the source of significant litigation over the years, due to the nuisance and noxiousness of the noise. See for example Schild v. Rubin (1991), California appeals court, https://law.justia.com/cases/california/court-of-appeal/3d/232/755.html .
SheilaJ1
(South Carolina)

Posts:110


04/06/2019 11:37 AM  
Posted By GeorgeS21 on 04/06/2019 7:32 AM
Sheila,

You are negative without cause - MANY CCRs specifically call out hoops as not being allowed, for both aesthetic, noise and/or safety reasons.

Brett,

Post your (redacted name) CCRs if you like as we all like to see language from other HOAs, but don’t let the negative tone from Sheila slow you from addressing the issue in your HOA. Every neighborhood I have lived in had some form of restriction on b ball hoops.



Thank you George, I’ll try not to slow the OP down.

I believe more than just the play equipment clause needs to be quoted here. Multiple parts of the covenants will address hoops. Under play equipment, noise and nuisance and the catch all modification clause.

We also need to ask for more parts of the covenants because hoops are usually portable and it may not come under the play equipment clause.

Let’s see how Brett, the newly elected board member, can tell us.

Are these single family homes or townhomes or both?
BrettH3
(South Carolina)

Posts:12


04/06/2019 3:42 PM  
Removal of obstructions. The Declarant , it’s successors or assigns, without notice, may remove any obstructions of any nature within roads-rights-of-way, including but not limited to, trees, shrubs, fences, Basketball goals, mailboxes, which in the opinion of the Declarant, it’s successors or assigns, either might produce a hazard or interfere with the ability or willingness of the State of South Carolina to maintain the roads.

We’d like them off sidewalks because they force people to walk into the streets, and out of the streets because they interfere with vehicles. We asked that they be moved to the yards.
LanceG1
(Georgia)

Posts:46


04/06/2019 6:27 PM  
Two things here:

With the home values and HOA's. The actual data is contradictory at best. Anecdotally I've seen situations where comparable houses two miles away from us, outside of any HOA in a neighborhood that would make many HOA enforcement boards send out a barrage of violation notices being worth 30-50% more because of things like a different school district, different county etc.. Also a overly aggressive board can also reduce home values by making it a miserable experience to live in a community. leading to more inventory, a reputation etc..

With the blow back etc.. Have you taken surveys where everybody was given an opportunity to participate and the majority of people asked for the extra enforcement? If so, providing that you are legally able to enforce things....IE: that the lack of enforcement has not made them un-enforceable legally, I'd say let the disgruntled homeowners do whatever they feel they need to but carry on and encourage them to run for the board.
SheilaJ1
(South Carolina)

Posts:110


04/06/2019 7:03 PM  
Posted By BrettH3 on 04/06/2019 3:42 PM
Removal of obstructions. The Declarant , it’s successors or assigns, without notice, may remove any obstructions of any nature within roads-rights-of-way, including but not limited to, trees, shrubs, fences, Basketball goals, mailboxes, which in the opinion of the Declarant, it’s successors or assigns, either might produce a hazard or interfere with the ability or willingness of the State of South Carolina to maintain the roads.

We’d like them off sidewalks because they force people to walk into the streets, and out of the streets because they interfere with vehicles. We asked that they be moved to the yards.


So these are single family homes and you want the hoops moved from the end of the driveway where the sidewalk crosses into the driveway itself?

Perhaps a linking a picture would help.
GeorgeS21
(Florida)

Posts:1285


04/06/2019 7:36 PM  
Lance,

It’s not “extra” enforcement ... it’s enforcement.

This is not a situation needing a referendum, it is simply an enforcement issue.
ArtL1
(Florida)

Posts:140


04/06/2019 7:42 PM  
As has already been mentioned, assuming your CC&Rs actually do prohibit basketball backboards in driveways, past boards not enforcing that restriction for a considerable length of time may put the HOA on shaky legal ground to suddenly start enforcing it. A quick googling suggests the statute of limitations on a written contract in SC is 3 years. By failing to enforce against open violations for >3 years, the HOA may have waived its right to enforce this restriction.

Having them on the sidewalk or street may be a separate issue. Who owns the sidewalks? Who owns the street? If you're a gated community, both are likely common area. If not, the city may own the streets (and maybe sidewalks), and there may be laws that would preclude playing basketball in the street. The HOA may have the right to remove/dispose of property left in common areas.

Either way, I think there are enough questions that you need to consult the HOA attorney before trying to enforce.
GeorgeS21
(Florida)

Posts:1285


04/06/2019 7:54 PM  
In some cases, the Board could simply enforce the rules per the CCRs, but should certainly understand them fully.

This puts the requirement to spend money on a homeowner wishing to challenge the CCRs.

If no one puts money against it, the Board has successfully enforced the CCRs.

Care must be taken to understand the documents.
NpS
(Pennsylvania)

Posts:3758


04/07/2019 1:23 PM  
New Board member ran for the Board because the old members weren't enforcing rules.
Rules now enforced by new Board.
But "no" says some homeowners - Those rules were never enforced before. You can't start now.
"Why not - That's why I ran in the first place."
What to do? What to do?

Recommendations:
1. Realize that you're going to have to go through a transition period. Blowback is unavoidable until the new standard is commonly understood and accepted by the community. Could take months or years.
2. If you're going to focus on safety (a good place to start), then start communicating with the community about the importance of safety before you start enforcing.
3. Pre-announce a date when enforcement of a particular rule will go into effect.

Best of luck.

Sikubali jukumu. Read all posts at your own risk.
GeorgeS21
(Florida)

Posts:1285


04/07/2019 2:43 PM  
Brett,

First - I would make certain that any discussion did not include anything like "we are now going to enforce" ...I would recommend language like, "while the board has been slow in addressing enforcement, we have improved our processes to continue enforcement."

Second - I have heard of Boards working with a homeowner to determine the enforceability by that homeowner doing something onerous, like parking a utility trailer in their yard, the Board addressing the violation following their process, usually with a letter from the Board, then a letter from an attorney, then a lawsuit to cure without damages. The homeowner represents themselves, and admits they have violated the covenants, pays court costs and since there are no damages or fines, the guilty plea is accepted and becomes part of the record. Or, so such variation. This may set a precedent for enforcement?

There are a couple of folks on this forum that can correct or improve my explanation ...?
KerryL1
(California)

Posts:6632


04/07/2019 5:06 PM  
Welcome back, NpS. I hope you stick around for awhile. Good to see Tim of VA contributing more again too.
JohnC46
(South Carolina)

Posts:8729


04/07/2019 5:18 PM  
Do not act like a school teacher (or a DI) and punish all for the act of one. Go after offenders to begin with.
NpS
(Pennsylvania)

Posts:3758


04/07/2019 6:59 PM  
Hey Kerry. Not back yet, but thought I'd drop a line. Glad to see you're still at it.

Sikubali jukumu. Read all posts at your own risk.
JaredC
(Texas)

Posts:214


04/09/2019 6:52 AM  
LMAO! Testify. As a board member you need to understand reality: Everything anyone does is OK and the HOA has no right to enforce anything ever. You're welcome.
GeorgeS21
(Florida)

Posts:1285


04/09/2019 6:56 AM  
Jared,

What?
JaredC
(Texas)

Posts:214


04/09/2019 6:57 AM  
On a more serious note if people want to do dangerous things then let them. That's their problem. If, however, a basketball hoop in a street is impeding the flow of traffic in the neighborhood and is a constant source of frustration then perhaps that's a good reason to enforce a rule.
GeorgeS21
(Florida)

Posts:1285


04/09/2019 9:06 AM  
Actually, Jared, one of the purposes of the rule of law has been to prevent people from doing dangerous things ... as most dangerous things end up putting others at risk.

Your tone is not positive to HOAs - the purpose of this site - and should not be construed by others as being broadly reasonable.
JaredC
(Texas)

Posts:214


04/09/2019 9:37 AM  
Here's the thing: Right or wrong kids have been playing in streets since streets existed. Secondly HOA's need to be very careful about what rule they want to enforce and why. Should HOA's ban children from playing soccer in their yard because the ball will inevitably roll into the street? Same goes for volleyball, playing catch with a football or baseball. How about hockey? I might think a kid riding their bike in the street before the age of 10 is dangerous so should an HOA create and enforce a rule because it's "dangerous"? What you or I think is dangerous is likely very different than what others consider dangerous. What if that basketball hoop was placed in a cul-de-sac where there is little to no traffic? Is it dangerous then?

Look, I was an HOA president for more than a decade. I totally understand both sides of the equation. HOA's also have a tendency to go overboard. Creating a rule to ban bike riding or soccer games or basketball hoops in the name of "safety", because the great HOA has deemed it so, has the potential of making people mad and creating controversy where none is necessary. It's a fine line and I always chose to err on the side of letting people be. I'll let the parents decide if what their children is doing is dangerous. Just sayin.
GeorgeS21
(Florida)

Posts:1285


04/09/2019 11:46 AM  
Jared,

I disagree - I have found most HOAs do the opposite - most allow far too many enforcement requirements to slide - and, then the neighborhoods slide.

As you expanded the circumstances to include scenarios that are not under consideration, it sounds like you want to turn this into a philosophical discussion - it is not - it is simply a rules enforcement discussion.

Is this post from you really how you feel? "LMAO! Testify. As a board member you need to understand reality: Everything anyone does is OK and the HOA has no right to enforce anything ever. You're welcome."
GenoS
(Florida)

Posts:3233


04/09/2019 1:53 PM  
Posted By GeorgeS21 on 04/09/2019 11:46 AM
Jared,

I disagree - I have found most HOAs do the opposite - most allow far too many enforcement requirements to slide - and, then the neighborhoods slide.

My experience is a small sample size (i.e. one) but I can vouch for exactly that happening here in my community right now. 16 new owners in the last 10 months out of 100 homes total. A committee spent a lot of time last year re-writing the Rules & Regulations. They were filed with the county (a new FL requirement since last year) after they were reviewed by our attorney.

Dozens of violations from the new owners and the new board (since January) couldn't care less. It's very discouraging.
JaredC
(Texas)

Posts:214


04/10/2019 7:02 AM  
I don't disagree with either of you George or Gino. To clarify my "LMAO" statement: From a homeowners perspective everything they do is OK and no rules should be enforced on them ever. I guess my sarcasm didn't hit the mark due to the format but the sentiment is true enough.

BTW, currently both of the board members at my HOA are in violation of our Rules and Regs and they don't care... Why? Because their violations are OK while others' are not. When I was on the board I bent over backwards to make sure I didn't violate anything because I always figured if I had to enforce them then I expected myself to be in compliance with them.

Anyway, back to the basketball hoop, claiming it's for safety is a bit of a joke IMHO. Lots of people on this thread went straight to the noise but let's be honest and admit the hoops don't create sound, people do and for that there are city noise ordinances in place so if someone is bouncing a ball at 11:00 p.m. call the police.

If you want to enforce this rule claim "aesthetics" as your reason. You don't want people junking up front yards visible to the public with toys, coolers, vehicles, basketball hoops, tall grass, etc. It's a much more honest approach.
TimB4
(Virginia)

Posts:16479


04/10/2019 3:23 PM  
I've actually seen the issue enforced as personal property being left out when not used.
Many covenants have that restriction.
MelissaP1
(Alabama)

Posts:8599


04/10/2019 8:52 PM  
I went through this... We had a basketball goal (for whatever reason) in the common area by the pool. It was basically an empty area that may have been set up for a future playground that never happened. The goal was on grass and not played with mostly. It was just a terrible location. Had to walk down a small hill to get to it and then behind it was houses downhill. So ball could end up hitting/landing in backyards of multiple houses.

Now a neighbor at an OUTSIDE curve of the road that lead to the dumpsters had a goal put up. The goal sat in the yard edge and goal over the street. It did offer enough view from those driving around the curve to see kids playing. There wasn't a noise issue as there was a wooded area nearby and few houses. The goal had been there for years. Matter of fact, the ex-president helped put it up and was at the corner of his property. I even played basketball on occasion. No problem for years...


However, the house across the street kid got on another basketball team. The house was on the INSIDE curve. It was in a bad location for a basketball as you could imagine. The ball would have gone right into their house and it was in a blind corner. The kid used to play at the basketball goal with ALL the other kids. The parents now DEMANDED they get their own goal. Tried to explain to them that was putting their kid in DANGER (common sense) and their house. They insisted they get their own or move the other one.

So I had the basketball goal (it was portable one) moved and put across from the basketball goal in common area. That made it a court. Still no one played basketball there. Ended up having the portable one removed altogether and trashed. (It was in bad shape). We ended up banning basketball goals altogether.


From my experience if it ain't broke, don't fix it. If the community is okay with the basketball goal, then keep it. It's only an issue when someone makes it one. If they do, then it better not be a "perceived" issue but a real one. Let the kids play if it's safe and doing no harm. Stop enforcing rules to live by for the sake of enforce rules... Sometimes you got to just play and enjoy the life you are making in your HOA...

Former HOA President
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