AlexB4
(Iowa)
Posts:3
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| 07/28/2008 6:00 PM |
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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 |
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RobertR1
(South Carolina)
Posts:2513
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| 07/28/2008 6:16 PM |
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Alex,
Hope you are ready for this so here goes.
You bought property in a townhouse association. That gives you the right to receive certain benefits, say, right to use the pool. But you don't live in the association, you just own property there. You gave up your right when you rented your townhouse. You also assigned your right to your renter, sure as you are born, it will be in your documents, suggest you read them. Now is this unfair to you and yours? Of course not, you signed an agreement when your bought property there to abide by the rules (Laws). If I could give legal advice and I don't, just opinion, I would say, save yourselve some money, maybe a lot, and sit down and read what you signed, and then read your governing documents. I am sitting here in SC and have great confidence, I am giving you the straight story.
By the bye, let me pose a question?
You rented your place...correct. Do you think you can walk in to your townhouse while your renter is there and use his tub and shower, because you own it? |
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DonnaS
(Tennessee)
Posts:2948
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| 07/28/2008 6:25 PM |
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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. |
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AlexB4
(Iowa)
Posts:3
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| 07/28/2008 6:31 PM |
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Thank you for your comments. Whoever, you did not address my main question. Can I trespass on my own property and is it appropriate to be threatened with being arrested? I could understand a fine, but not a criminal offence, surely not.
As for your question, of course you may not enter without notice. Whoever, I have full right to enter the property with 24 hour notice according to the code of Iowa landlord tenant law. No reason need be given.
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MicheleD
(Kentucky)
Posts:1866
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| 07/28/2008 6:47 PM |
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Posted By AlexB4 on 07/28/2008 6:31 PM
Thank you for your comments. Whoever, you did not address my main question. Can I trespass on my own property and is it appropriate to be threatened with being arrested? I could understand a fine, but not a criminal offence, surely not.
As for your question, of course you may not enter without notice. Whoever, I have full right to enter the property with 24 hour notice according to the code of Iowa landlord tenant law. No reason need be given.
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. . .
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TonyM3
(Arizona)
Posts:140
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| 07/28/2008 7:23 PM |
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| In our community a lot owner has access to the common property whether they live on the property or not. |
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KirkW1
(Texas)
Posts:1190
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| 07/28/2008 8:04 PM |
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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. |
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DwightT
(Idaho)
Posts:483
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| 07/28/2008 8:05 PM |
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It may not be in the HOA documents, but instead is in the lease agreement. Usually those agreements grant the use of the property and it's amenities to the renter, at which time the owner gives up his rights to the property. In theory, the owner could rent out the house, but keep the rights to use the pool for himself. But that would have to be stated in the lease and probably the owner would need to provide the HOA with a copy.
Our pool is too small for both owners and their renters. It needs to be either one or the other to keep from over-using the facilities.
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RobertR1
(South Carolina)
Posts:2513
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| 07/28/2008 8:52 PM |
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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. |
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RobertR1
(South Carolina)
Posts:2513
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| 07/28/2008 8:56 PM |
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I also find fault in our habit of labeling subjects with no regard to the facts.
The subject is: Being Bullied by Treasure of Association.
Take about taking a leap. |
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MiloK
(California)
Posts:12
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| 07/29/2008 2:03 AM |
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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. |
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GeorgerwilliamsW
(Indiana)
Posts:768
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| 07/29/2008 3:10 AM |
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Alex,
Let me chip in my $0.02 worth here.
I completely agree with Robert and Donna and Mary and Michele and Kirk and Dwight on this one.
I think the have covered the bases. |
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RobertR1
(South Carolina)
Posts:2513
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| 07/29/2008 4:29 AM |
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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. |
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DonnaS
(Tennessee)
Posts:2948
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| 07/29/2008 5:05 AM |
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Alex,
You complicated your original question when you said that you sometimes use the pool, (which is not your property but belongs to the association of which you are a part of.
Then you asked "Can I tresspass on my own property" What are you referring to? The Treasurer did not say that you cannot tresspass on your own property. She said that you cannot use the pool.
" 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.
We have all told you about giving up use of common property once you have a tenant who now has the exclusive rights to use of the amenities. The Treasurer was rather harsh in her response to you but that is another time and place for you to address. (where did the right to enter your own property get into the original question?) |
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DJ1
(Ontario)
Posts:460
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| 07/29/2008 7:16 AM |
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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. |
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JohnK3
(Pennsylvania)
Posts:565
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| 07/29/2008 8:32 AM |
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On the other hand...
Our CCRs sate that our common facilities are for the use of any Unit Owner, tenant or occupant.
Brilliant minds can differ on these issues, as can document language. |
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GeorgerwilliamsW
(Indiana)
Posts:768
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| 07/29/2008 8:48 AM |
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Posted By JohnK3 on 07/29/2008 8:32 AM
On the other hand...
Our CCRs sate that our common facilities are for the use of any Unit Owner, tenant or occupant.
Brilliant minds can differ on these issues, as can document language. 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.
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MaryA1
(Arizona)
Posts:2498
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| 07/29/2008 8:48 AM |
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Alex,
I believe the answer to your questions should be found in your gov. docs; most likely the CCRs. Mine state: "Easements and rights of enjoyment in asn lands: delegation of use. Any owner may, in accordance with the rules and the limitations therein contained (if any) and this declaration delegate his right of enjoyment inthe assn land to the members of his immediate family, his tenants, or his guests or invitees." I interpret this to mean the member would still have rights of enjoyment even if he "delegated" those rights to a tenant. However, interpretation of the CCRs is not my right as a member, that is only a right given to the BOD. If these "rights of enjoyment" are outlined in your gov docs and there is no ambiguity in the wording, then the board cannot make an interpretation that would be contrary to the restriction. I suggest you thoroughly research all your gov. docs for restrictions regarding "rights of enjoyment of common areas". |
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GeorgerwilliamsW
(Indiana)
Posts:768
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| 07/29/2008 9:03 AM |
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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!
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JohnK3
(Pennsylvania)
Posts:565
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| 07/29/2008 9:04 AM |
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George,
My dictionary defines a tenant as a renter of property. A fair reading would
include the meaning of the words written, not what might have been contemplated. |
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MaryA1
(Arizona)
Posts:2498
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| 07/29/2008 9:08 AM |
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Posted By GeorgerwilliamsW on 07/29/2008 9:03 AM
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? |
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MaryA1
(Arizona)
Posts:2498
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| 07/29/2008 9:11 AM |
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George,
Sorry, I hit "submit" too soon.
I meant to state that althought the board has the authority to interpret the CCRs, they cannot make an interpretation that would be in violation of any law or be contrary to, or change the meaning of, any provision of the CCRs. |
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GeorgerwilliamsW
(Indiana)
Posts:768
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| 07/29/2008 9:18 AM |
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Posted By JohnK3 on 07/29/2008 9:04 AM
George,
My dictionary defines a tenant as a renter of property. A fair reading would
include the meaning of the words written, not what might have been contemplated.
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. |
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JohnK3
(Pennsylvania)
Posts:565
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| 07/29/2008 9:33 AM |
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George,
Can't say I'm an expert in PA, but thank you for the attempted props.
You wrote:
"The covenanting parties’ intent must be determined from the specific language used and from the situation of the parties when the covenant was made."
I agree. Tenant (in our HOA's case, and I suspect others), is specific language. Like Annie Sullivan says to Helen Keller in THE MIRACLE WORKER:
"It's a word! It means something!"
Also, in first year Contracts class, we were taught that the language of a contract is to be strictly construed against the party who drafted the contract.
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GeorgerwilliamsW
(Indiana)
Posts:768
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| 07/29/2008 9:55 AM |
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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.
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RobertR1
(South Carolina)
Posts:2513
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| 07/29/2008 12:26 PM |
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George and all,
This is all facinatingstuff, and withut taking too big a leap, how do you thing all these millions of resetrictive covenants are going to fly when the Feds and the tates start dictating some of these "Sustainablility Problems" that are fast approaching. Of course I am talking about conservation of everything that is natural on this planet. Tiny example:
"Covenants be damned, let there be: windmills and solar panels, clothes lines and recycle bins, screen doors and "victory gardens". Conserve, preserve and "can" it all. For the old timers. |
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GeorgerwilliamsW
(Indiana)
Posts:768
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| 07/29/2008 1:26 PM |
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Posted By RobertR1 on 07/29/2008 12:26 PM
George and all,
This is all facinatingstuff, and withut taking too big a leap, how do you thing all these millions of resetrictive covenants are going to fly when the Feds and the tates start dictating some of these "Sustainablility Problems" that are fast approaching. Of course I am talking about conservation of everything that is natural on this planet. Tiny example:
"Covenants be damned, let there be: windmills and solar panels, clothes lines and recycle bins, screen doors and "victory gardens". Conserve, preserve and "can" it all. For the old timers.
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?" |
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JerryV
(Florida)
Posts:7
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| 07/29/2008 1:57 PM |
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| We have a situation in our community (181 SFH) where an owner lives nearby but rents out his home. Both his tenants AND the homeowner and family/guests use the pool on weekends. Homeowners pay $600/year for water, common areas maintenance including a pool, marina and clubhouse. Our By-laws state that payment of the annual dues entitles the HOMEOWNER to the amenities. We are going to try to change the By-laws to specifically address this situation. I am on the Board and I am constantly arguing that we are collecting ONE assessment but have TWO families using the facilities as in the case of this homeowner. |
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AlexB4
(Iowa)
Posts:3
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| 07/29/2008 2:13 PM |
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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 |
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DonnaS
(Tennessee)
Posts:2948
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| 07/29/2008 2:54 PM |
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Jerry,
WOW!! That's unusual to not have that use defined in your Docs. Rentals change the whole amount of useage on the amenities and usually an owner relinquishes his usage once a tenant is in the unit. Make sure that it is not already in your docs. |
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