Get 2 months of free community web site hosting from Community123.com!
Thursday, December 12, 2019
Get 2 months of free community web site hosting from Community123.com!
Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Subject: A Swimming Pool and it's Fence
Prev Next
Please login to post a reply (click Member Login on the menu).
Author Messages
ChadC
(Indiana)

Posts:15


06/27/2006 4:51 AM  
Good morning all, I was wondering if anyone knew the answer to this question.

We have a resident that wants to install a in-ground pool (Not a problem according to the covenants), the problems lies with a fence rule we have in the Covenants and an Indiana Building Code and the resident is asking for a variance in the Fence Rule because they don't want to spend 5k on a pool cover.

Our Covenants state that we will ONLY allow a fence that is NO taller than 4ft...Indiana law says if you want to have an in-ground pool you must have a fence No Less than (5ft in height) or a locking pool cover($5k) which will hold 400lbs.


So the question is should the board approve the 1ft variance in the fence height? Does the Indiana Law override our Covenants? If we allow the variance should we amend our Bylaws to state only for in-ground pools?
SwanB
(Washington)

Posts:199


06/27/2006 5:00 AM  
My understanding is that our covenants can be stronger than the county or state statutes but not less. So in your case, that would mean the variance you grant could be 5 ft. but not 3 ft.
My suggestion is not to amend your bylaws but to grant the variance and state the condition for this specific in-ground pool stating the Indiana law.
If another case comes before the Board, you have another variance to grant but there might be other circumstance that require a different decision in that matter.
We have granted variances from our covenants and as a result started a Variance Notebook with a spreadsheet detailing out the reasons and particulars of each situation. None of them were granted for the same reason.
JulieS
(Georgia)

Posts:412


06/27/2006 8:07 AM  
I would think the state law is above the HOA covenants in this situation. I think Swan's way of going about this is a good solution.
DonnaS
(Tennessee)

Posts:5671


06/27/2006 8:10 AM  

Chad,
It doesn't matter what your covenant and guidelines say, a pool fence must be in regulation with the County and State regulations. The fence should require an installation permit, therefore it will have to fall into code requirements. They are the governing rule. I suggest that when you get the chance, you must update your current covenant to fall in line with the County and State.
LisaS
(Illinois)

Posts:341


06/27/2006 8:55 AM  
The pool must be installed pursuant to Indiana code, but I think most missed the obvious: the pool does not have to be installed.

It is in the Boards discretion on whether to issue a variance for this sitaution and this fence. Covenants can be more restrictive than state or local law, but not less. It is in the owners discretion on whether they want to install the pool with the $5k cover if the variance is not issued.

We have a similar issue with above ground pools. Village code for us requires 5 foot fence with locking gates or 72 inch tall including locking railing/ladder system.

But, we put a 60 inch total height restriction on any above ground pool, and allow only fenced yard to have pools. If the owner does not want a 5 foot fence, or does not want to put locks on their gates, then they can't have a pool.

We have big houses and small lots, so if we did not impose these restrictions it would be a very awful aesthetic.
ChadC
(Indiana)

Posts:15


06/27/2006 11:05 AM  
Thank You Lisa and Swan...you gave me alot more to think about but seems to have cleared things up in my head as well..

Thank You
GeraldT1


Posts:0


06/27/2006 5:27 PM  
ChadC - Linda raises a very valid point that it's the owners choice to install the 5k pool cover. As are all the points provided. However, do you want the HOA to be in the position of denying the pool for 1 foot difference in fence height by the length of the fence? Probalby not. Here's some food for thought. The housing market nation wide is taking some very big turns, many states are on the downside of the resale value curve. An inground pool adds resale value which has a postive effect on the resale value of neighboring homes. Even if someone buys a home without one, I guarantee the kids will become friendly with the kids of owners with pools. Pools are good for communities. In healthy associations, covenants evolve and keep up with the times. Permit the variance, keep the 4 foot height for everyone else, and permit variances for anyone that petitions for a pool. If enough owners request the variance, justification for changing the covenants may be in order. I perceive it as a win win for your community. GeraldT1
BradP
(Kansas)

Posts:2640


06/27/2006 7:29 PM  
Chad:

Another piece of food for thought, what real privacy does a 4 ft fence give you? My seven year old son is taller than four feet. That obviously is my opinion but I would think it would be a benefit to look at changing your covenants to reflect a higher fence and more of a sense of privacy.
BrianB
(California)

Posts:2820


06/28/2006 11:13 AM  
outside the box thinking uncovers another option...

the owner can carefully read the definitions in the statutes and the covenants, and see if this would work.

State requires a fence 5 foot tall, measured from where? pool level? average/mean ground level? how about the HOA? Where do they require the measurement be based? depending on the answer, the owner may be able to dig a small sloping recess where the fence will sit, about a foot lower than the surrounding landscape. He builds the five foot fence in this lower landscape feature, which satisfies the city's code. However, the fence is only four foot higher than the general yard/ground around it, which satisfies the association's height requirement for aesthetics. For safety, it's 5 foot tall for someone trying to stand there and climb it, but from the street, it only sits 4 foot higher than the rest of the yard.

MistiH
(Texas)

Posts:52


07/04/2006 3:48 PM  
Good idea, I do see a drawback however. If such a slope is created, then rain run-off w/ dirt, plant material, etc. would always run into the pool. Whereas that may be ok with CCR compliance, it probably wouldn't be so great for the homeowner.

Loving Life in Texas!
Misti
BrianB
(California)

Posts:2820


07/04/2006 7:30 PM  
slope both ways, creating a ditch/moat, perhaps. Or install a gravel channel with septic pipe inside, to drain the water away.

Of course, the other option is the $5000 pool cover...
Please login to post a reply (click Member Login on the menu).
Forums > Homeowner Association > HOA Discussions > A Swimming Pool and it's Fence



Get 2 months of free community web site hosting from Community123.com!



News Articles Provided by: Community Associations Network
News, articles and blogs about condos/HOA's

Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.







General Legal Notice:  The content of forum messages are from the posting member and have not been reviewed nor endorsed by HOATalk.com.  Messages posted by HOATalk or other members are for informational purposes only, are not legal or professional advice and do not constitute an attorney-client relationship.  Readers should not act upon this information without seeking professional counsel.  HOATalk is not a licensed attorney, CPA, tax advisor, financial advisor or any other licensed professional.  HOATalk accepts ads from sponsors but does not verify sponsor qualifications nor endorse/guarantee any sponsor's product or service.
HindmanSanchez Legal Notice:  (For messages posted by HindmanSanchez) This message has been prepared by HindmanSanchez for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Members of HOATalk.com should not act on this information without seeking professional counsel. Please do not send us confidential information unless you speak with one of our attorneys and get authorization to send that information to us. If you wish to initiate possible representation, please contact an attorney in our firm. Our attorneys are licensed to practice law in the state of Colorado only.

Legal Notice For Messages Posted by Sponsoring Attorneys: This message has been prepared by the sponsoring attorney for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Readers of HOATalk.com should not act on this information without seeking professional counsel. Please do not send any sponsoring attorney confidential information unless you speak with the sponsoring attorney or an attorney from the sponsoring attorney’s firm and get authorization to send that information to them. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. Sponsoring attorneys that post messages here are licensed to practice law in a specific state or states as indicated in their message signature or sponsor’s profile page. (NOTE: A ‘sponsoring attorney’ is an attorney that is a HOATalk.com official sponsor and is identified as such in the posted message or on our sponsor page.)

Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions )   Terms Of Use  Privacy Statement