I rented my unit...Can I now use the community pool?

I am an owner of a townhome in an association that has a pool and clubhouse in Iowa. We have rented the townhome to tenants since we bought it 5 years ago. We use the pool from time to time with our kids. We have never caused any trouble. We were rudely told that we cannot use the pool because of a homeowner’s association rule. We were told that we would be arrested for trasspassing if we us the pool again. How can you trasspass on your own property? Are we being bullied? Any legal advise? Thank you for your comments.

Blind sided

Alex,

None of us will give you legal advise because we cannot and should not per the posting rules and good posting practices.

That being said, it is probably in your very own documents such as bylaws, that once you rent or lease your unit, the use of the community amenities are also transfered over to your tenant. This is a very normal practice. You probably can go as a "guest" of your tenants. Don't be upset about this happening. Note to your Treasurer--she could have explained why and where it is written about use of the amenity.

Your question WAS answered. There are a variety of scenarios under which a person could be arrested for "tresspassing" on their "own property."

However, you seem to be missing a very important component here: It may not actually BE your "property" if you have tenants to whom the benefit of use of the amenity has passed.

This could well set you up for criminal trespass, once you have been duly notified that you are a trespasser, as the treasurer has apparently done. . .

Are you sure you own any interest in the pool? I don't know what your documents say, but in many associations the association owns the pool and not the membership of the association. Thus you would be trespassing on association land. I know this may seem like splitting hairs but it is the way it is.

Certainly the treasurer could have been nicer. But you may not own any interest in the pool and thus could well be guilty of criminal trespass when there.

Kirk,

I am not so sure this whole thing is that complcated. He bought s townehouse in an association five years ago. Now he has owned there for five years. He and his family have used the Pool at least. He knows full well he pays dues or fees or he wouldn't be so upset about someone excluding him from the pool. He thinks he has a stake in the pool and club house and association. If not why would he be paying dues and claiming he owns the pool. He is not referring to his townhouse, he is referring to common or limited common property. How can we decide he is Mr Innocent, he has violated he associations trust for five years.
And how about the Secretary that we have accused of being "not nice". She is doing her job as she sees it and I bet this gentleman has been informed before and unless I miss my guess there probably was a letter or two passed back and forth about the matter. Give this Secretary as much credibility, naye more, than we are giving the poster, chances of her being involved without proper interest are little and none. So if I could I would say to her: keep up the good wotk my friend for without people like you I doubt the associations can hold it together.

I won't use the term bullied, when you lease out your property you give up all access to the property. Yes! this includes community access.

A friend of mine recently lease out their house. They locked up their storage shed to store spare items that the tenants may need. Guess what? The management company told them to either to empty out the shed or take it a part. If someone pay the money to rent your property, they have the right to have full access to your property. Unless otherwise specified.

MloK,
I don't know how this will play in Peoria (expression us old guys know) but this would sure put a crimp in the rentals here. They all have locked owners closets. My reference to the secretary is purely observational (is that a word). Having lived for a lot of years trying to provide some degree of sanity to some uncontrolled renters, (no, not all renters are uncontrolled, I looked forward to several return customers each year), unless you have stood in this ladies shoes trying to do what you are legally required to do (protect the property, be she Board member or not), you have no idea of the abusive you can have dumped on your head.
Personally, I would like to see each Board Member wear a button identifying themselves as authority figures and more than that, act as authority figures, but that is NOT going to happen, at least not here.

Do you have a clause like this in your CCR's?

"Lessees: If a lot is leased or rented by the Owner thereof, the lessess and members of his family residing with such lessee shall have the right to use the Common Area during the term of the lease, and the Owner of such Lot shall have no right to use the Common Area until the termination or expiration of such lease."

If you do it would address your question.

Nevertheless, a fair reading of that clause by a court of jurisdiction would more likely than not say that it did not contemplate a non-resident owner using the common facilities.

It seems to me that the intent was not to enable both the non-resident owners and lessees to use the common areas at the same time.

Mary,

In Hoosierland, covenants are adjudicated as contractual rights with a bias toward individual property rights. The board of directors has no more right or authority to interpret the meaning of the covenants than any homeowner does.

I am flabbergasted that Arizona statutes and case law empowers the board of directors with sole right (at the expense of owners) to interpret the covenants. Since homeowners have no right to interpret the covenants themselves, that makes the board even more powerful that any branch of government. It is nothing short of dictatorial. Now I am beginning to understand why there are so many problems with homeowner association management in Arizona. Wow!

George,

I didn't say AZ law empowered the board to interpret the CCRs. My CCRs give that power to the board as do the CCRs of many, many assn's. Who else would have that authority; it's the board that manages the assn? If your docs do not give that authority to the board, what happens with clauses that are full of ambiguity?

You are the expert in Pennsylvania, so I cannot speak for how covenants are interpreted by the courts there.

Here is how Indiana courts look at them. Intent of the parties is important(relevant sentence highlighted):

"Indiana law permits restrictive covenants but finds them disfavored and justified only to the extent they are unambiguous and enforcement is not adverse to public policy. Holliday v. Crooked Creek Villages Homeowners Assoc., Inc., 759 N.E.2d 1088, 1092 (Ind. Ct. App. 2001). When courts are called upon to interpret restrictive covenants, they are to be strictly construed, and all doubts should be resolved in favor of the free use of property and against restrictions. Renfro, 799 N.E.2d at 547. The covenanting parties’ intent must be determined from the specific language used and from the situation of the parties when the covenant was made. Mayer, 830 N.E.2d at 979. Specific words and phrases cannot be read exclusive of other contractual provisions. Id. In addition, the parties’ intentions must be determined from the contract read in its entirety. Id. We attempt to construe contractual provisions so as to harmonize the agreement, id., and so as not to render any terms ineffective or meaningless, City of Lawrenceburg v. Milestone Contractors, L.P., 809 N.E.2d 879, 883 (Ind. Ct. App. 2004), trans. denied."

http://www.in.gov/judiciary/opinions/pdf/11170605ewn.pdf

Every state and court is different.

Those aren't my words, they are the words of the Indiana Court of Appeals. Take a look at the web link for the published opinion.

In Indiana those words are the law, regardless of what we think or wish would be true or how we interpret covenant language ourselves.

Indeed, the court holds that "Because covenants are a form of express contract, we apply the same rules of construction." Further they state, "Specific words and phrases cannot be read exclusive of other contractual provisions." And, "In addition, the parties’ intentions must be determined from the contract read in its entirety."

Those are the rules the court uses to interpret covenants. And that's the law, regardless of what we wish it were.

Robert,

I am just waiting for the day when the covenant prohibiting solar panels on my house is declared invalid. And I already have an eye on a small wind turbine to power a geothermal heating system.

My homeowners association has already learned that they cannot do anything about my service dog due to ADA regulations.

The homeowners association board needs to ask, "How can we help?", rather than, "How can we prohibit?"

Thank you all for your posts and comments. I wanted to clear up a few facts. We have not been notified by letter, call or in person about use of the pool before this call. We have not been aware of such a rule. I was not aware of the rule until I got the call from the treasurer. The treasurer (Male) was rude, condescending and I suspect having a bad day. I was very upset and taken back by the call. I was not rude, just stunned. I will not be using the pool anymore. I will be attending the next association meeting to see if this rule can be changed. More importantly, I will let them know how rude the treasurer was to me, threatening me with arrest.

Again, thanks you all very much for your interesting replies, I have enjoyed reading them.

Alex

Jerry,

Be sure to read the posting below from DJ. It has some good language about the problem you are describing.

Go get him Jerry, he has rode the gravy train too long. If you can pro-rate him for back violations.

Jerry,
So, what do you plan to do about it, and how can you do anything about it?
Don't depend on the FHA to come in and enforce their rule of anytime a conodo reaches 20-30% rentals they won't give any more mortgages there. If you have a couple of Board members that rent their units, you will be in for a major battle. Can it be done? I think so. Could I do it? I didn't stand a chance, you have seen how quickly the picture changes during the last two years or so. It is more than just owners looking to flip property, it is the realtors, the bankers, the Mortgage makers that realize there is a ton of money to be made manipulating the property behind those closed gates. The allure is real. We have heard tales of woe and desparation from people that got in over their heads, and the trickle down is worse than the act, but you can bet your booty some made big money on this, cumulatively. And on and on.
So, if you can swing the deal, put a limit on the % of rentals. I rented in my life, and I am not against renters, they are innocent, my problem is when owners put the welfare of their investment ahead of the association by buying rental property at the detriment of the whole. And that is why, most covenants allow for rental restrictions and also why most associations don't have the power to change or add these covenants, because, sadly, it is often the Board and the owners lack the knowledge and the interest to see the train coming down the track. Good luck.