Resticting Amenity Usage

Started by StevenH1 • 23 replies • 1521 views

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StevenH1 (Pennsylvania)
Posts: 7

Posted:

Our community had some serious problem in the past with amenity violations and usage. The rule was for each property to have a 12 pass maximum. The developer, during hard times, allowed multiple deeded owners to each have 12 passes leading to one property having 24, 36 or more passholders.

This created an overcrowding of amenities. When the community association took over control from the developer, a new rule was put into place to address this concern.

Here is the text of that passage:
**********
6. Multiple Owner Pass Procedures
As of May 22, 2004 the following rules shall be applicable in the enforcement of the use of membership passes. Any individual or families who have established membership rights prior to May 22, 2004, will not be affected by these rule changes. They shall be “grandfathered,” Upon sale/transfer of the property the designated family rule will apply:
a) Effective May 22, 2004 the XXXXXXX Property Owners Council will recognize one (1) deeded property owner and his/her immediate family as being eligible for amenity pass use. These property owners shall be classified as designated property owners.
b) Effective May 22, 2004 the XXXXXXX Property Owners Council will not restrict amenity usage from multiple deeded property owners if they were property owners prior to May 22, 2004.
c) Any other parties listed on the deed shall be classified as undesignated property owners.
d) Deeded designated immediate family members will be given a maximum of twelve (12) identification passes. Immediate designated family members are defined as: Deeded property owner, deeded property owner’s spouse, deeded property owner’s children, deeded property owner’s children’s spouses, deeded property owner’s parents, deeded property owner’s grandchildren and deeded property owner’s great grandchildren. Passes not required for children 2 and under, unless using the ski amenity. Proof of identity shall be required to show immediate family relationship.
e) All additional designated immediate family members who wish to obtain an amenity pass shall pay a fee of one hundred dollars ($100.00) per pass/per fiscal year.
(1) For additional undesignated deeded property owners wishing to obtain an amenity pass, the following rules apply:
(i) Additional undesignated deeded families will be charged a full year’s family dues for amenity passes.
(ii) Immediate undesignated families will be issued a maximum of twelve (12) amenity passes. Immediate undesignated family members are defined as deeded property owners, deeded property owners spouse, deeded property owners children, deeded property owners parents, deeded property owners grandchildren and deeded property owners great grandchildren. Passes not required for children 2 and under, unless using the ski amenity. Proof of identity shall be required to show immediate family relationship.
(2) The type of proof required to determine family members shall be at the discretion of the POC.
f) The prior rules that are not affected by the establishment of the new rules shall remain in effect.
g) In the event a property that is “grand fathered” is sold or has a deed change, the privilege of multiple owners receiving membership passes shall no longer be applicable. The rules adopted on 5/22/04 will then be in effect on that property.
h) If a current member or members sell their property and purchase another property in XXXXXX those individuals shall fall under the newly adopted rules (5/22/04).
**************

I purchased a house with my brother in the community and even though he is a deeded owner (owns half of the property) he has no rights to use any of the amenities even though he pays half of the dues. He would have to pay an extra $1400/yr for him and his wife to go to the pool, etc.

There really is no way to know if the next property bought will be a couple with no kids and will use 2 passes or a family with 4 kids and 8 grandkids which will use all of the passes and maybe even more.

So I think a more reasonable approach would be for all deeded owners to share a maximum of 12 passes per property.

Any thoughts?

Thanks

SusanW1 (Michigan)
Posts: 5,202

Posted:

WHAT created an "overcrowding" situation?

The idea athat 24 or 36 passes were issued to one person instead of 12, or the fact that 12 x whatever number of units could possibly be at one amenity at one time (pool, beach, community center)?

Your Board needs to do an evaluation of all amenities and determine if the 12 is a valid number of guest passes to distribute. Maybe backing off to 10 each may help. Having a Guest Day or Grandkids Day or restricted hours for guests may also help.

Time for the Board to get creative. With more baby boomers having extended family as guests, this problem is only going to get worse. Plan now for the future.

StevenH1 (Pennsylvania)
Posts: 7

Posted:

After 9/11 the community saw a huge increase in new construction as more people want to spend time with family and friends. As an example, in 2001, 5 new homes were built and in 2005, 110 new homes were built. So the pool gets overcrowded, etc.

The question though is not the crowds. Does the community have the right to restrict owners who are in good standing from using the amenities because there are two owners on the deed?

Thanks

MicheleD (Kentucky)
Posts: 4,491

Posted:

If I am on the deed, whether your HOA "says so" or not, or whether your HOA "likes it" or not, I'm entitled to all amenities (if I'm in good standing), regardless of my familial relationship to any OTHER named deed owner.

What a pile of crock. I'm surprised this hasn't been challenged.

"a) Effective May 22, 2004 the XXXXXXX Property Owners Council will recognize one (1) deeded property owner and his/her immediate family as being eligible for amenity pass use. These property owners shall be classified as designated property owners.
b) Effective May 22, 2004 the XXXXXXX Property Owners Council will not restrict amenity usage from multiple deeded property owners if they were property owners prior to May 22, 2004.
c) Any other parties listed on the deed shall be classified as undesignated property owners. "

MicheleD (Kentucky)
Posts: 4,491

Posted:

Quite frankly, on second thought about this and the purported "reasoning" behind it, it appears very much to me to attempt to restrict non-traditional families (read: gay).

StevenH1 (Pennsylvania)
Posts: 7

Posted:

Quote:

Posted By MicheleD on 07/21/2008 12:19 PM
Quite frankly, on second thought about this and the purported "reasoning" behind it, it appears very much to me to attempt to restrict non-traditional families (read: gay).

I was also thinking the same thing as well. Also, there would be problems with non-married couples. It could open up the community up to some serious litigation.

The fact that as long as you pay extra money you can get up to 12 more passes negates the very reasoning behind the rule in the 1st place. All it does is put a tax on multiple deeded owners and to dissuade potential ownership. I mean you can't have an arbitrary rule that states a deeded owner can't use the amenities if let's say his name starts with an "h" or the color of his skin happens to be black.

What do you think my best plan of action is? I went before the board and they say I need 2/3 majority vote to modify the rule. The board hasn't said whether or not they will back any change.

MicheleD (Kentucky)
Posts: 4,491

Posted:

A "rule" or a "deed condition, covenant and restriction"?

In other words, is it an amendment to the CC&Rs, or to the rules and regulations?

I find it extremely hard to believe that 2/3 is required to change an R/R?

Or it could simply be found unconstitutional.

A deeded owner is a deeded owner. To claim only ONE person on the deed is acknowledged as an owner who qualifies for amenities is pretty ballzy.

I don't see how this could stand up to any challenge.

But I've been wrong before over lesser things.

StevenH1 (Pennsylvania)
Posts: 7

Posted:

The passage I quoted before is in the Property owners handbook. It is not in the bylaws. I have no idea why that would require 2/3 approval. I will find out at the next board meeting.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Oh my.

They may well be in for some serious issues if that is not in the governing documents.

Good luck to you.

MicheleD (Kentucky)
Posts: 4,491

Posted:

By the way, it wouldn't necessarily be in the "by laws" anyway.

By laws more likely deal with the way the administration of the HOA is set up, such as dictating how many board members, officer positions, roles, when meetings should occur, how the voting is conducted, etc, and generally (though not always) doesn't address issues such as use of amenities by the homeowners, thought it COULD define member "classes."

The Declarations or Deed Restrictions, or Conditions, Covenants and Restrictions or some other name similar to that is what generally what deals with General Use restrictions and what not.

SusanW1 (Michigan)
Posts: 5,202

Posted:

Each HOUSEHOLD should be awarded the amenity passes to use.

Forget who lives there. At least one member does, but that's not the issue.

BradP (Kansas)
Posts: 2,640

Posted:

Steven:

I am not the brightest person around but to me this has been made so much harder than what it really needs to be. Your board must really like to do work or else there is someone who thinks they are a legal expert.

To me this is simple, each property gets 12 passes. If there are two deeded owners to the property let them argue over who gets them, not your problem. You simply give the passes to a deeded owner and from that point let it go.

I agree with Michele that to me it appears to be discriminatory in nature the way it is written.

BrianB (California)
Posts: 2,820

Posted:

the rules are overly complex to get the job done.

the rules are overly strict, and don't allow for some fairly common living arrangement situations. For instance, I am married to Donna, and have her three kids (previous marriage) in the home. Donna dies, leaving me with care of her three children. Suddenly, they can no longer swim in the pool because they are not the children of a deeded owner? After all, if your rules list everything in such detail, then why not step children? Only natural children are allowed? no foster children? No cohabitating couples? prepare to be sued.

lastly, what type of ID would i carry that shows "proof of my immediate family relationship". How does that work, is it on the driver's licenses in PA? Does the state issue an ID card showing my family tree, geneology, grandparents, etc? If my last name is different than my spouses, how does that work for me, for our kids, for both their spouses?

StevenH1 (Pennsylvania)
Posts: 7

Posted:

I want to thank everyone for there responses.

We had to show our marriage liscense and our birth certificates to prove that we were married and that my parents were my parents and our children were our children.

In the past they had problems with the multiple deedholders either giving their passes to other people who didn't care about the community and would trash it or they would sell the passes because one of the amenities is a ski mountain.

As someone mentioned, I have suggested to them that if you keep the 12 pass maximum, just divide that among the deedholders and let them figure it out.

I have met some of the old multiple deedholders that were grandfathered in and they were complete jerks. I think the multiple deedholder rules were only written to discriminate and dissuade all types of non traditional arrangements.

I raised these questions at a community meeting and listen to what the community manager's wife got up and said after me. "I feel bad for Steve and his Brother's situation but they should have read the rules first before they bought. These rules took a long time to work out and were carefully considered" Can you believe that? It is as if their rules should not be questioned. There was a rule in this country for almost two hundred years that women couldn't vote but my grandparents came to this country anyway because it is a great country. This is a ridiculous argument but people applauded her comments. I quickly tabled my motion for voting to change the rule because I saw the tide was turning against me.

I just don't know how to proceed.

Thanks again

DonnaS (Tennessee)
Posts: 5,671

Posted:

Steven,
I have been following your post and have come to my own conclusion. You need to throw out this entire part of your docs and system and get to a fairer one. Grandfathering in is horrid in this case. It has created 2 classes of ownership. That stinks. Just because you were lucky enough or perhaps unlucky enough to buy at a given time, you have more rights than others. ME THINKS NOT!!!

Each and every unit gets a certain number of passes? So one family(A) has 4 times 12 passes (48)but yet they don't use them. Family (B) has 2 times 12 passes (24) yet they go to the pool every day. Now what.

Then we have this?? "the community manager's wife got up and said after me. "I feel bad for Steve and his Brother's situation but they should have read the rules first before they bought. These rules took a long time to work out and were carefully considered" I can tell you that this person is a retiree and has established squaters rights mentality.

So, IMHO, this whole thing is a piece of work that should head for the garbage can.

BrianB (California)
Posts: 2,820

Posted:

here's some possible ammunition steve:

the civil rights act of 1964, title II, outlaws discrimination in public accomodations. Granted, an HOA is not usually "public", however, by allowing dozens of passes to be given to non-members of the organization, your HOA may have messed up their "private club" arguement. you might have a hard time finding a protected class that has been wronged, but this might be a start to a slippery slope argument.

Then, title VII has made case law that same sex sexual harrassment is illegal, and that might help someone else with gay living arrangements.

it's not much, and pretty thin.

StevenH1 (Pennsylvania)
Posts: 7

Posted:

Quote:

Posted By BrianB on 07/22/2008 12:52 PM
here's some possible ammunition steve:

the civil rights act of 1964, title II, outlaws discrimination in public accomodations. Granted, an HOA is not usually "public", however, by allowing dozens of passes to be given to non-members of the organization, your HOA may have messed up their "private club" arguement. you might have a hard time finding a protected class that has been wronged, but this might be a start to a slippery slope argument.

Then, title VII has made case law that same sex sexual harrassment is illegal, and that might help someone else with gay living arrangements.

it's not much, and pretty thin.

Brian,
Thanks for the info. I agree it's pretty thin but better than nothing. Does anybody know if it is actually illegal to restrict a deeded property owner in good standing from the amenities based on an arbitrary rule as stated above? This community is in Pennsylvania. How do I find a lawyer with experience with HOA's?

SusanW1 (Michigan)
Posts: 5,202

Posted:

There's a whole list of reasons why one can't discrimnate against other people because of . . . .sex, religion, sexual preferences, political affiliation, etc. etc.

To set the availability of amentities based on any of these categories is wrong and illegal.

Your Board needs to know that there could be a class action suit against the association for discrimination.

Move to recind ALL of the categories used to determine use of amentities, except for being a home in the association. The property/deed has the privileges, not people.

(P.S. I hope you really "withdrew" your original motion - to "table" it (really means "to set aside") means that it is still active and could be voted on.

BrianB (California)
Posts: 2,820

Posted:

Quote:

Posted By StevenH1 on 07/22/2008 1:12 PM

it's a tough call Steven... The civil rights act has very specific language for some of the titles, and some very unclear language about other titles. legally, you can't mix and match between one and another, but you do have to watch for case law where terms might have been defined.

In general, i would say that an HOA of single family homes with a pool, etc. that is NOT open to the general public can discriminate against people that a city owned pool, or a company owned ski lift/run resort could not.

But, you also have to find someone in a protected class that is being discriminated against in your HOA, and the two brothers aren't protected.

KirkW1 (Texas)
Posts: 1,665

Posted:

Quote:

...We had to show our marriage liscense and our birth certificates to prove that we were married and that my parents were my parents and our children were our children. ...

I am not a lawyer, and don't even portray one on TV, but this sounds problematic to me. In fact, the whole things sounds very much like a violation of the fair housing act. The minute you request to see a marriage certificate you are on shaky legal ground.

The equitable solution is to allow a set number (12 seems very high) number of passes to each unit. The passes are transferable to any deeded owner or their families. And if a unit has 25 people owning it, the 25 people have to work out the transfer among themselves.

The idea should be that the amenities benefit the occupants of the community.

Two things come to mind:

1) Check into voting rights. You may be able to get enough votes to throw the thing out.
2) You may have to consider getting a lawyer to deal with this. If you go this route, then you should seriously consider getting others to sign on as co-litigants (and split the bill).

StevenH1 (Pennsylvania)
Posts: 7

Posted:

I just checked into Pennsylvania law and found out that it is completely legal to discriminate against homosexuals for employment and housing! A bill has been introduced but has not passes to extend protection.

So I can take that argument out of my bag of tricks.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Steven,

Pennsylvania Law does not mean anything because the Federal Law trumps it, especially where it pertains to housing and employment. It's called the "Fair Housing Act" and no HOA has the power to ignore that act.

BradP (Kansas)
Posts: 2,640

Posted:

Quote:

Posted By StevenH1 on 07/23/2008 6:43 AM
I just checked into Pennsylvania law and found out that it is completely legal to discriminate against homosexuals for employment and housing! A bill has been introduced but has not passes to extend protection.

So I can take that argument out of my bag of tricks.

Even if it is legal...is it right??? I wouldn't take any argument out, just because someone deosn't conform to what others think is a "norm" doesn't mean they should lose their right as a human even if the state doesn't agree with it.

KirkW1 (Texas)
Posts: 1,665

Posted:

Also keep in mind that federal law always trumps state, local, and HOA law. And federal law prohibits you from asking about familial status in most housing situations. And any law that requires breaking a law to enforce becomes nullified.

This is how the Texas Sodomy law was removed from the books. Because the only way to enforce the law was to violate a person's privacy, the federal courts struck the entire law down.

Since the only way for the HOA to enforce their rules is to violate the "Fair Housing Act," those rules become a legal liability. Look into the Fair Housing Act because when the HOA asked to see your marriage license it probably violated at least on provision thereof. It is now illegal for an organization to define what makes a family when it comes to housing.

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