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Subject: Trash Cans and Unintended Consequences

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GeorgerwilliamsW
(Indiana)

Posts:768

08/10/2008 3:41 PM
From just up the road (and it even quotes my friend, Tom Murray. . . New trash contract creates dilemma for homeowners 8/9/2008 The city of Noblesville entered into a new contract for trash pickup that has created an unintended consequence for homeowners residing in communities controlled by recorded covenants. The dilemma arises from the fact that some homes in covenanted communities have garages that are too small to accommodate the 96 gallon trash can and the correct number of vehicles for which the garage was built. A major consideration for both the homeowner contemplating a challenge to the HOA and the HOA contemplating enforcement against the homeowner is the fact that covenants will only be enforced if a court of law believes the restriction is reasonable. Since Covenants generally give the HOA the right but not the obligation to enforce their covenants, the HOA has the ability to determine which covenants are reasonable and, therefore, enforceable. The question currently before every HOA in Noblesville should be whether a covenant is enforceable if it prevents homeowners from parking their vehicles in their own garages. Ira Goldfarb, president of the Stoney Creek Village HOA, said their board voted to stop enforcing the covenant on trash cans. “Rather than trying to enforce an unreasonable covenant,” Goldfarb explained, “the board established the circumstances by which the new trash cans could remain outside – they have to be behind approved fencing or otherwise not visible from the street.” The board had three goals in reaching this decision. “We wanted to respect and acknowledge the needs of the homeowner,” Goldfarb said. “We wanted to assure the continuing curb appeal of the community. And we wanted to maintain the integrity of the HOA as a rules-making body.” Other HOA’s have reported that they intend to pursue compliance of the existing restrictions because the homeowner can choose not to use the trash service provided by the new city contract. Such a stance will most likely result in a stampede of homeowners who simply defy the authority of the board, or worse yet – will create a lot of business for local attorneys. HOA attorney Tom Murray, of Eads, Murray and Pugh, said a better alternative would be for HOA’s “to use this time to weed out and modify those covenant restrictions that are unenforceable and no longer serve the community.” http://www.county29.net/cms2/index.php?option=com_content&task=view&id=17204&Itemid=225

SusanW1
(Michigan)

Posts:2316

08/11/2008 5:12 AM
Seems like two conflicting rules to me. I wonder why the Board didn't research this out, or if these are newer designed containers, be more proactive in getting its documents in order. Doesn't anyone own a measuring tape?

BonnieE
(Illinois)

Posts:176

08/11/2008 6:35 AM
Hello, Unintended consequences indeed... We had this issue a couple of years ago when our Village’s waste collection contractor changed to a larger recycle can (to be used with an automated system on the truck to lift and empty it) from small bins, which were emptied by hand into the truck. The Village and contractor worked out a solution – to allow those HOs with the single car garage and no room for the larger can to continue to use the smaller bin. The HO only needed to make the request to have the larger can removed and to continue to use the smaller bin. BTW, the Village had considered the footprint of the new can and required it to be the same as the footprint of the old bin. The problem for some HOs, though, was that the new can was taller. Bonnie

MaryA1
(Arizona)

Posts:2498

08/11/2008 7:30 AM
My first thought is: why would anyone want to store a trash can in the garage anyway???? That is the last place I would ever considering storing my trash can, even if my garage was large enough to accommodate all three of my trash cans and my two vehicles! Yes, I said 3 -- one for reg. trash, one for recyclables and the 3rd is used for yard trimmings, etc. The article stated a new HOA rule: "they have to be behind approved fencing or otherwise not visible from the street.” This is the rule that most, if not all, the assn's I'm aware of have. Of course in this part of AZ all the houses are walled in, so placing the trash can behind the wall is no problem. However, in areas that don't have walls, a screen could easily be erected, or shrubbrey planted, to hide the trash can(s). On the other hand, if the lots are so narrow in some s/d's making the screening almost impossible, the HOA will just have to amend their rules. As long as the h/o places the can on the side of their house (not in front of the garage door or left on the sidewalk, which is against city code where I live) should be acceptable. The notion that a trash can on the side of a house detracts from property value is a bunch of bunk. I once lived in a non-HOA neighborhood and that is where everyone stored their trash cans. Our neighborhood enjoyed some of the highest property values in the area and was a very sought-after neighborhood in which to live.

BonnieE
(Illinois)

Posts:176

08/11/2008 8:36 AM
Hi! The issue of where to put the trash cans (in garage, along the side of or behind home, behind screening (fence or vegetation), etc.) depends on the type of HOA. In our case, we are condos that look like townhomes (~5-6 units per building). The cans can not be placed along the side because that is someone’s front entry, nor behind, because the patios are there. Screening can not be installed due to the layout of the common areas. I might also add that while we are an urban area, we have a lot of wildlife – raccoons, coyotes, etc. that love to get into the trash, and do so, when the cans are not covered (when are placed out overnight for next AM trash pickup). Bonnie

JohnK3
(Pennsylvania)

Posts:565

08/11/2008 9:37 AM
We also have huge blue containers on 4 wheels that are picked up by trucks with lifts. Virtually everyone here keeps them in their garages, though we don't have a rule to do so. I keep ours in the garage because: 1. They're an eyesore. 2. Easier access. 3. They're so thick that there's no "odor" problem. 4. Don't have to go outside in poor weather to make a deposit. 5. Plenty of room. 6. Keeps scavenging animals from using them as a cafeteria. As Bonnie notes, though, depends on circumstances.

KirkW1
(Texas)

Posts:1190

08/11/2008 11:21 AM
... 3. They're so thick that there's no "odor" problem... Obviously you don't have a child in diapers. If you did, you would feel differently about the odor. And when you open the can, the whole garage will smell like rotten poo.

MaryA1
(Arizona)

Posts:2498

08/11/2008 1:45 PM
Posted By KirkW1 on 08/11/2008 11:21 AM ... 3. They're so thick that there's no "odor" problem... Obviously you don't have a child in diapers. If you did, you would feel differently about the odor. And when you open the can, the whole garage will smell like rotten poo. Ugh!!! Add AZ heat and you'll have to fumigate your garage every week! Although I do see some people here in AZ storing their trash cans in their garage.

GlenL
(Ohio)

Posts:1466

08/11/2008 9:50 PM
Posted By KirkW1 on 08/11/2008 11:21 AM ... 3. They're so thick that there's no "odor" problem... Obviously you don't have a child in diapers. If you did, you would feel differently about the odor. And when you open the can, the whole garage will smell like rotten poo. I had a friend who delivered newspapers that gave me some of his extra plastic bags which we used to bag the diapers before disposal. Good for odor control bad for the environment though I suppose. My youngest just turned 21 so in another 1000 years or so they should start to decay.

KirkW1
(Texas)

Posts:1190

08/12/2008 7:52 PM
I had a friend who delivered newspapers that gave me some of his extra plastic bags which we used to bag the diapers before disposal... A plastic bag only slows the odor down. Put that thing in a garage stand add Texas summer heat and you will have a smelly can. (Arizona heat is worse of course.) As aside note, the odor will permeate the plastic and seep out after the source is gone.

MaryA1
(Arizona)

Posts:2498

08/12/2008 7:59 PM
Posted By KirkW1 on 08/12/2008 7:52 PM I had a friend who delivered newspapers that gave me some of his extra plastic bags which we used to bag the diapers before disposal... A plastic bag only slows the odor down. Put that thing in a garage stand add Texas summer heat and you will have a smelly can. (Arizona heat is worse of course.) As aside note, the odor will permeate the plastic and seep out after the source is gone. Kirk, As I previously stated, all my trash is put into plastic bags and tied. My trash cans emit no odor! They sit in the AZ sun all day long -- no shade in the area whatsoever.

KirkW1
(Texas)

Posts:1190

08/12/2008 9:05 PM
...As I previously stated, all my trash is put into plastic bags and tied. My trash cans emit no odor! ... Do you place damp poop in your trash? In the three years of dealing with diapers (two children closely spaced together), I have come to find that the odor seems to seep. This doesn't happen overnight. And in fact, it doesn't happen in a week or a month. But after some time the can will begin to reek. Just as a hint, do not ever smell the inside of a well used diaper genie. Take the little diaper sausages out and you will not smell anything from them. Just from the open pail that holds them temporarily. I also found that raw meat will put forth an odor that moves through plastic.

GlenL
(Ohio)

Posts:1466

08/12/2008 10:54 PM
Kirk here's a little trick we used when picking up someone who had died and was a little "ripe". Just a little dab of vapor rub under the nose and that's all you smell.

GeorgerwilliamsW
(Indiana)

Posts:768

08/13/2008 3:27 AM
First, diapers and plastic bags. Now vapor rub and dead people. Lots of unintended consequences, for sure. Since this thread has moved away from the original post, but not in an uninteresting manner, let me ask this. Did anyone notice the following in the original newspaper column that was written, by the way, by a lawyer? Since Covenants generally give the HOA [in Indiana] the right but not the obligation to enforce their covenants, the HOA has the ability to determine which covenants are reasonable and, therefore, enforceable. Strict interpretation of the precise language of covenants is not required, according to this attorney. The board can use its discretion and judgment in choosing to enforce or not enforce covenants. That makes a lot of sense to me. Yet it seems to be at odds with many of the opinions posted on various other threads here.

MaryA1
(Arizona)

Posts:2498

08/13/2008 7:22 AM
Posted By KirkW1 on 08/12/2008 9:05 PM ...As I previously stated, all my trash is put into plastic bags and tied. My trash cans emit no odor! ... Do you place damp poop in your trash? In the three years of dealing with diapers (two children closely spaced together), I have come to find that the odor seems to seep. This doesn't happen overnight. And in fact, it doesn't happen in a week or a month. But after some time the can will begin to reek. Just as a hint, do not ever smell the inside of a well used diaper genie. Take the little diaper sausages out and you will not smell anything from them. Just from the open pail that holds them temporarily. I also found that raw meat will put forth an odor that moves through plastic. Kirk, I'm well past the diaper stage of life! But, I do hear your pain. I remember having diaper service for my oldest boy. Even though I rinsed out the diapers the stench was horrendous! I couldn't wait for p/u each week. LOL

MaryA1
(Arizona)

Posts:2498

08/13/2008 7:33 AM
Posted By GeorgerwilliamsW on 08/13/2008 3:27 AM First, diapers and plastic bags. Now vapor rub and dead people. Lots of unintended consequences, for sure. Since this thread has moved away from the original post, but not in an uninteresting manner, let me ask this. Did anyone notice the following in the original newspaper column that was written, by the way, by a lawyer? Since Covenants generally give the HOA [in Indiana] the right but not the obligation to enforce their covenants, the HOA has the ability to determine which covenants are reasonable and, therefore, enforceable. Strict interpretation of the precise language of covenants is not required, according to this attorney. The board can use its discretion and judgment in choosing to enforce or not enforce covenants. That makes a lot of sense to me. Yet it seems to be at odds with many of the opinions posted on various other threads here. George, This brings to mind a famous AZ HOA lawsuit -- the Gfeller case. In this lawsuit, the Gleller's brought suit against their assn for failure to prevent a neighboring prop owner from interfering with drainage of rainwater from their property. The assn argued they had a right, but not a duty to enforce. The owners argued that the following language in the CCRs imposed a positive duty upon the assn to enforce the CCRs: ". . .these CCRs may be enforced by the assn or its BOD, which SHALL HAVE THE RIGHT AND DUTY to enforce the same. . ." The assn lost the case! Many docs do not contain the word "duty", only indicating the assn has the right to enforce; so it's not known if the courts would impose a duty. But, Contrary to what this attorney says, a prudent board will be very careful that the word "duty" is not in the CCRs b/4 determining whether or not the assn must enforce. The lesson learned by this case is that assn should review their docs very carefully. If the BOD doesn't want to enforce a particular provision they should amend or repeal that provision; otherwise failure to enforce might result in a court case.

BonnieE
(Illinois)

Posts:176

08/13/2008 7:56 AM
Very interesting, Mary. Upon reading your post, I went to review our docs and note that the word “duty” is not included. And, George, you make a good point. That is basically true in IL, too. The BOD has the right to enforce….they are not required/obligated to enforce. I think this is because it was not intended that the BOD act like the local police department. Unfortunately, there are times when BOD members or HOs think they have such a right/obligation. BODs, though, when using the application of “reasonableness”, should keep in mind whether they could be setting a precedent, or whether a precedent has previously been set with regard to enforcement (or lack of enforcement) of the CCRs. In other words, they need to be consistent in what they enforce and how they enforce it. Bonnie

MaryA1
(Arizona)

Posts:2498

08/13/2008 8:04 AM
Posted By BonnieE on 08/13/2008 7:56 AM Very interesting, Mary. Upon reading your post, I went to review our docs and note that the word “duty” is not included. And, George, you make a good point. That is basically true in IL, too. The BOD has the right to enforce….they are not required/obligated to enforce. I think this is because it was not intended that the BOD act like the local police department. Unfortunately, there are times when BOD members or HOs think they have such a right/obligation. BODs, though, when using the application of “reasonableness”, should keep in mind whether they could be setting a precedent, or whether a precedent has previously been set with regard to enforcement (or lack of enforcement) of the CCRs. In other words, they need to be consistent in what they enforce and how they enforce it. Bonnie Bonnie, But, just because the word "duty" is NOT in your docs, doesn't mean a judge would not rule that the BOD had a duty to enforce. In the case I referenced it just so happened that "duty" was in the docs. And, speaking of reasonableness; that's where the business judgment rule comes into play. Judges use the business judgment rule as a major guideline for determining whether the board's action was reasonable. The business judgment rule means: the BOD will act in good faith, in what they consider to be the best interests of the corp and with the care than an ordinary prudent person in a like position would exercise in similar circumstances.

GeorgerwilliamsW
(Indiana)

Posts:768

08/13/2008 8:15 AM
Ah, yes, Mary. But not so fast. Courts in different states may have differing interpretations. In Hoosierland, for example, the Appeals Court has specifically stated (and quite clearly stated) that the business judgment rule must be modified in its interpretation to favor individual property rights. The Court of Appeals has held that covenants are a special type of contract, not subject necessarily to the same interpretation that may obtain for contracts in the normal course of business.

BradP
(Kansas)

Posts:1742

08/13/2008 8:25 AM
Posted By MaryA1 on 08/13/2008 7:33 AM But, Contrary to what this attorney says, a prudent board will be very careful that the word "duty" is not in the CCRs b/4 determining whether or not the assn must enforce. Mary: How can you expect any board to do that when you don't expect them to know the definition of single family?

GeorgerwilliamsW
(Indiana)

Posts:768

08/13/2008 8:25 AM
In regard to duties of the association, I just searched our covenants. The word "duty" was only used in terms of "duties and obligations." And, interestingly, the only "duties and obligations" specifically demanded of the association is the maintenance of common areas. The Association, subject to the rights and obligations of the Owners as set forth in this Declaration, shall be responsible for, and be vested with, the exclusive management and control of the Common Area and all improvements (if any) thereon (including equipment related thereto), and shall keep the same in good order and repair. There is no specified "duty and obligation" of the association to act on other covenant issues at all. The association has the "power" to enforce, but not the "duty/obligation." Interesting, ain't it.

BonnieE
(Illinois)

Posts:176

08/13/2008 8:31 AM
Mary, I agree with you. My last point was something I had read in an article about enforcement of CCRs. Going to our Rules/Regs, under Enforcement, it states: “In accordance with Section 318.4(I) of the Illinois Condominium Property Act, if someone is believed to be in violation of any of the provisions of the Declaration and By-Laws or Rules and Regulations, a signed, written complaint form must be submitted by an owner, the managing agent, a resident or a member of the Board of Directors. A written complaint form...proscribed by the Board shall be sent to the management firm or the Board.” It then goes on to describe the enforcement process. Would you interpret this to mean that alleged violations must be reported, but then the Board has the authority to determine whether or not a violation has occurred using the application of reasonableness?

KirkW1
(Texas)

Posts:1190

08/13/2008 11:29 AM
In my opinion you should either enforce the rule or amend/remove the rule. Now obviously sometimes you need some breathing room. If you covenants state that the trash can not be outside and you are in this situation then the BOD should take the lead and not enforce the rule while they then get the covenant amended. It takes time to go through a formal rule change. All the same, it is best to take the action. Here is food for thought: If you become a lazy BOD and don't bother with rule changes, down the road you may face enforcement from another BOD. Courts have rules in favor of BODs changing direction many times. But if you take the time now, then it will slow down a BOD that is insane down the road.

MaryA1
(Arizona)

Posts:2498

08/13/2008 2:21 PM
Posted By BonnieE on 08/13/2008 8:31 AM Mary, I agree with you. My last point was something I had read in an article about enforcement of CCRs. Going to our Rules/Regs, under Enforcement, it states: “In accordance with Section 318.4(I) of the Illinois Condominium Property Act, if someone is believed to be in violation of any of the provisions of the Declaration and By-Laws or Rules and Regulations, a signed, written complaint form must be submitted by an owner, the managing agent, a resident or a member of the Board of Directors. A written complaint form...proscribed by the Board shall be sent to the management firm or the Board.” It then goes on to describe the enforcement process. Would you interpret this to mean that alleged violations must be reported, but then the Board has the authority to determine whether or not a violation has occurred using the application of reasonableness? Bonnie, What this law does is allow a member to lodge a complaint, but puts the onus on the board to determine whether or not the complaint is valid. This is the way it should be. In many instances the BOD doesn't even have to apply the "reasonableness" factor, it's just a matter of whether or not there is a violation; i.e., did the car belong to the member who was named in the complaint; is the paint color of the house an approved color or not, etc.

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