Resident violating the Covenant

I live in a 55-and older, paired patio home community in Indianapolis. The covenant is very clear that no one under the age of 55 "shall be a resident of a dwelling" except in the following 3 circumstances: 1) a live-in caretaker who does not meet the age requirement may dwell in the residence until the owner has regained health or has died. 2) A disabled dependent child, under the age of 55, may live with a homeowner. 3) An underage spouse of a 55-year old homeowner may dwell in the home, but the title must be in the name of the 55 year old.

One of our neighbors has been gone on vacation for 10 to 12 days. She has had two young women living in her home, I assume to house-sit and pet-sit, during her absence. The young women are at best in their early 20's or late teens. During their stay in the home, other teens/20-year olds have visited the home. The homeowner is a frequent traveler and although this is the first time she has had someone staying in her home, it is very likely she will travel for extended periods in the future. I (and some other neighbors) believe the homeowner is the type of person who will "push the envelope" as far as possible. Keep in mind that this is a paired home (duplex type) with a common wall and roof of two homeowners, and other homeowners in the area are aware of this situation.

I'd appreciate any feedback anyone has to offer. Do you think this is a violation of the Covenant? What is your advice for the BOD? How do think this situation is best handled? Thanks for your input.

Marianne,

As a Hoosier, I have intimate knowledge of such a situation--more than I can say here.

Is the situation you describe a violation of the covenants? From a technical point of view, it appears to be.

Yet, a temporary house-sitter or guest does not meet the definition of a resident. I would doubt that courts in Indiana would support a finding that the covenants have been violated. And fines are not permitted.

The question you must ask is, "What damage is being done? What is the harm?" If there is no manifest harm to property values or to the free enjoyment of other owner's property there may be little you can do from a legal, ethical or moral point of view.

Sadly, in Indiana there is a lot of language in covenants that simply is not enforceable unless there is tangible evidence of damage. No harm, no foul. The language is more of a guide to proper behavior.

Now, if it is an issue of noise, behavior, parking, or some other behavior that carries beyond the walls of the unit you may have a cause of action.

I believe this is a case in which moral suasion and neighborliness is going to work far better than legalistic letters from the board or attorneys.

Could you offer to look after your neighbor's unit while she is away? I would.

If not, is there some other neighbor that would be in a position to do so?

Could the board send a kind, considerate and understanding letter explaining the desire to maintain the character of the the community? That would be on the top of my list.

With all that said, your concern is legitimate and valid. I sympathize with your plight.

I believe most sincerely that you will be more successful in addressing your concern if you approach this issue compassionately and with neighborliness.

That approach may not work, but then again it just might.

I would like to read what others advise you to consider as well. Thanks for asking a great question.

I must thoughtfully and with consideration to your point of view disagree (without being a disagreeable person).

There is much to be discussed here without even getting into the legalistic or technical issue of what is a resident or owner. There are ways to consider the issues presented in this thread other than simply legalisms.

Certainly, a lengthy house-sitting stay by twenty-somethings is inappropriate in a community for those 55 and older. How should this issue be addressed, if at all, by the board?

Thank you George for your very considered and sensitive response. (Thanks to all others, too.)

I think your suggestion that the board send an understanding letter, which explains "the desire to maintain the character of the community" is probably the best solution to this problem.

As a matter of fact, for the past 5 years, I have cared for the vacationing resident's property, tended her pet, picked up her garbage can (sometimes chasing the lid down the street), at her request have met workmen at her home during her absence, and have done everything I can to be neighborly. However, when I requested that she not limit access to my driveway with her RV, she became angry at me and has not spoken since. She's also angry at the neighbor on the other side of her because that neighbor declined to allow her to install her fence on the neighbor's property. The subject resident has stated in the past that she doesn't think the BOD can do anything when a resident violates the Covenants.

At this point, the vacationer is back home, and the young women occupying her home in her absence truly did not cause any serious problems. My fear, however, is that a precedent is being set -- not only for the resident in question, but for others who may see this behavior. I think if the BOD does not act, their inaction becomes tantamount to condoning underage persons to reside in a home for an unlimited amount of time.

Thanks, Marianne

One more thought: you may not have to worry too much about the precedent setting inaction.

In Hoosierland the Court of Appeals has held that even if the board has failed to act in the past, it is not prevented from acting in the future.

"The non-waiver provision, by its plain language, is intended to prevent a waiver based on prior inaction in enforcing the Restrictions. To hold otherwise would render the non-waiver provision meaningless and violate the expressed intention of the contract among the property owners."

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

Sometimes neighbors are the most un-neighborly people in the world. Sadly, there is nothing we can do except continue to "be nice" and to do the right thing, knowing that doing right is its own reward.

George,

Thanks again. I feel relieved to know that if our board doesn't address this, it will not prevent them from addressing a similar situation in the future. Also thanks for the website you linked here. I will look at it. I'm glad to call you a fellow Hoosier. Marianne

Short of a definition in the documents, terms carry their common meaning. The test is, "What would a reasonable person believe the meaning to be?"

Having said this, I think it to be a very uphill battle to even start to consider a house sitter of 12 days to be a resident. And as a BOD member, I would decline involvement at all in the situation unless the house sitters were there in a very regularly sitting.

Even then, it is an uphill battle at best and a losing proposition at worst. And if you ask the BOD for involvement then it will appear that you are upset at the resident and trying to get back for the RV incident. (I am not saying that is the case, but could appear that way.)

If the young women say there on a very regular business, then it might be appropriate for the BOD to involve itself. But at the end of the day, understand that it would be a tough sell to declare them residents if they leave when the owner comes home. And attempts to limit them could hamper other owners as well. (Who wants to count the days their grandchild has been there for fear that they are over the limit?)

KirkW1
Oh, you are so right!! This situation is a real sticky wicket. What I have not said in previous postings is that I am a member of the 5-person board. As a member of the board, I signed a Statement of Conduct, which has as one of its provisions that board members act in the best interests of the community. It is important to remember that this IS a restricted community.

When I became aware of the situation described earlier, I found myself in a dilemma. Given my history with the neighbor, certainly my objectivity has to be questioned. If I overlook the potentially harmful situation, then I have not fulfilled my board obligations. If I bring the question to the rest of the board, it could appear that I'm engaging in "payback." I labored over this long and hard. I finally decided that I need to hand it over to the other four board members and recuse myself from any board decisions abut the matter.

As a matter of information, I e-mailed the other board members about the situation. I did not use the name of the individual and gave no indication of where the homeowner lives. I simply said that the homeowner has been gone for 10 to 12 days and two young women have been occupying the house in the homeowner's absence. Then, I started this thread in order to get some feedback from others.
These comments from you and others have really helped me to deal with this precarious situation I find myself in. I really appreciate all the help provided here.
Marianne

I see no covenant violation here...the definition of a resident is "A person coming into a place with intention to establish his domicil or permanent residence, and who in consequence actually remains there. Time is not so essential as the intent, executed by making or beginning an actual establishment, though it be abandoned in a longer, or shorter period."

There is nothing in what you said that these girls give the intention of living there. As many others have said the answer is in your guest definition, if your HOA does not have one I would suggest adopting one. Otherwise what this person did is well within your rules and regulations.

Marianne,

If your whole s/d was a "HUD commuity", I'm sure you would know because you would have had to qualify as a low-income individual in order to purchase your home. In some cases a developer will agree to including low income housing in their s/d plan. This usually requires that a certain % of the homes being built be set aside for HUD housing. These homes would be lower priced -- within the range of what a person qualifying for HUD benefits could afford.

You say you have never seen a deed. Do you mean you don't have a deed to your property? At any rate, the answer to your question wouldn't be found in the deed anyway. As another individual stated, if your documents do not have a definition of a guest, the board should get busy to adopt one. BTW, have you looked in the definitions section of your CCRs for "guest"?

Susan, Mary, and Donna,

I have just gone through a stack of long-forgotten closing papers. Yes, there is a deed, but it is very short and gives only the address, conveyance to me, and the signature of the developer's representative. Interestingly, I also found a document which was required to prove that I was over 55 at the time of purchase.

I saw no indication of HUD or HOPA involvement in any of the documents. I don't doubt, however, that all communities (for older people or not) fall under some federal and state statutes. For example, some of the documents cite Indiana Code that the development is not built over a landfill. That was the only specific citation of Indiana Code.

Back to my original question, though, and the many fine responses in this thread, our board will meet next Thursday and one of the agenda items will be a discussion of the situation I described. All 5 of our directors are intelligent, reasonable people, who seem to have the best interests of the community in mind, so I feel certain an agreeable solution will be reached.

Last October there was a complete turnover of board members so all 5 of us were new to the board. The complete turnover came about because homeowners thought the old board was secretive and there was suspicion surrounding them. Our new board wanted to avoid that so we arranged to have monthly meetings in a free room at the local library. The first hour is for board members only and the second hour is open to homeowners, but we ask that they advise us ahead of time as to the issue they want to address. So far, we've only had one couple who came with a suggestion - not a complaint.

Every month, we publish a newsletter and in it we include a brief Treasurer's Report and state that the full report is avilable upon request. We include news, information about the community and board actions. One of our members writes a biography of a homeowner each month or there is an article about a club that meets or a Bible study group. The response has been tremendous. People in the community are speaking again, they volunteer to pull weeds and help decorate our Gazebo. They volunteer to work on committees. We have made such great strides that I hope we can solve this problem in such a way that people continue to feel good about where they live.

Thanks to all for your valuable input. Marianne

Marianne,

Let me just say that this is a great deal of bogus information and opinion being posted on this topic. I am staying out of it because I am not fully up to speed, and I have to allocate my time to other issues and projects.

You would be well served to exercise caution in consideration of what is being written here. It is not always factual. Indiana laws are quite different (some would accurately say, behind the times). What applies in other states does not apply in Hoosierland.

George with all due respect that is one of the most arrogant postings I've seen here. That what others have posted is bogus even though you freely admit you're not up to speed on the matter. No one is giving legal advice here (even the people who are actually lawyers) it's all someone's opinion, read the disclaimer at the bottom.

If someone is wrong by all means call them on it. But this type of statement is IMO Bravo Sierra and not helpful to the discussion at hand. And while Indiana law will certainly come in to play 55 and older communities come under Federal Guidelines. I suspect that the OP is not so much upset that this woman had the young girls watch her home for 12 days as she is upset about the other stuff she posted and is using this as an excuse to "get back" at her. But that’s only my opinion bogus or not.