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Subject: Above ground pools and temporary structures
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Author Messages
MikeC6
(Illinois)

Posts:30


09/02/2007 8:59 PM  
I have listed this issue before, but I would like an update if I could.

Basically, we have a pool rule that states "An in ground pool can be built. It says nothing about above ground pools.

We also have a rule that states "no Permanent or temporary structure may be built in the rear of the lot.

This pool is built in the rear of the lot and our lawyer has gone after them with the rule regarding it being a temporary structure.

We have been a single family home subdivision for 8 years and nobody has put a pool up. This was due to the fact that people were told that there was no above ground pools allowed.

Any thoughts?

It will be going to court soon.
MelissaP1
(Alabama)

Posts:10521


09/02/2007 9:36 PM  
Since the documents specifically say "In-ground pool" it would seem that any other type of pool is NOT allowed. Otherwise, it wouldn't be specific in wording. Plus an above ground pool is considered a "Temporary structure" since it can be torn down and removed. It also may not be part of consideration when selling the house. The pool could also causing damage to the common area if it is located on "common area". Common area is considered owned by ALL the members/HOA.

The HOA does have a right to remove this structure at the owner's costs if they don't comply. The HOA can (after proper notifications) pay a contractor to remove the pool and send the owner the bill. If the owner refuses to pay that bill, the HOA can place a lien for this amount.

The HOA should send out a letter of warning to the owner that the pool is in violation of the CC&R's. It should include a quote of the exact rules it violates as well. The owner then should be informed they must either remove this structure within 10 - 30 days or the HOA will remove it for them at their cost. You may want to get a quote from a contractor just to give a ball park figure of the cost of removal. Plus the HOA will already have a contractor lined up to do the work if necessary. Let the owner know, they will get liened if they don't pay up.

I am not sure what the role of the attorney is playing for your HOA right now. He/she should already know that your HOA has the right to remove the structure. They may even draft the above letter themselves to send it to them. However, I am not sure if going to small claims court will be the solution. The owner's may take the HOA to court, which is OKAY. It's cheaper to file a counter-suit than to sue. Plus, damages would have to actually occur before any court action could take place. The HOA would have the letter, the rules, and bill to submit to the court that they had to pay out. That bill would be considered "Damages" and be the amount of the judgement plus court costs if requested. The owner would have to prove their case and proof of removal costs they suffered or other damages in the process.

Keep us updated on the situation. It's not many times HOA issues really do go to court.

Former HOA President
MikeC6
(Illinois)

Posts:30


01/16/2009 6:08 AM  
We are still fighting this one.

The home owner is stating that we are not enforcing others on the rule of no structures and he is being singled out. he is going after the rule that states No sheds or outbuildings or temporary or permanent structures may be built in the rear of the lot. They are saying that there are swing sets, brick patios, flag poles, basketball poles in the neighborhood so why can't they have an above ground pool.

The pool falls unde "an in ground pool may be constructed in the rear of the lot and also any temporary structure rule.

This has cost us over 20k so far. The homeowner seems determined to fight this to the end.

We are only a single family home subdivision with 79 homes and there has never been an above ground pool installed in the 10 years we have been here.
GeorgerwilliamsW
(Indiana)

Posts:975


01/16/2009 7:10 AM  
This is one of those situations in which nobody wins. If the association prevails and secures a judgment for fees and costs, it could throw the homeowner into foreclosure and bankruptcy. If so the association would likely have to pony up for the fees, or end up taking possession of a home that may be extremely hard to sell in this market.

Depending on the judge and the skill of the lawyers, this decision could go either way, but based on the information in the thread, I would tend to think the association would prevail--at least under the rules of interpretation that are used in Hoosierland courts.

One of the key legal arguments here is "like and kind." An above ground pool is of a different character than a swing set or sandbox or brick patio, perhaps even a storage shed. Also, most covenants have a provision that allows a board to enforce covenants and rules, regardless of past decisions not to do so. In Hoosierland courts, such a provision carries siginficant weight in a finding. It allows associations to overlook some infractions, but not others. To some it would appear that it enables inconsistent enforcement, but Hoosierland courts do not necessarily see it that way.

Mike, what is the sense of the other owners? Are they supportive of the association pursuing this course of legal action? Do they understand what the cost will be to individual owners should the association not prevail?

This could be a battle worth fighting, but the risk of success is not insignificant. It is not a slam dunk.
MicheleD
(Kentucky)

Posts:4491


01/16/2009 7:23 AM  
As well, many HOAs have this language in them:

"Section 7. Board's Determination Binding. In the event of any dispute or disagreement between any owners relating to the property subject to this Declaration, or any questions of interpretation or application of the provisions of this Declaration or the Bylaws, the determination thereof by the Board shall be final and binding on each and all such owners."



We have followed this one through to a successful court resolution as well.

The homeowner had 30 days to remove his pool.

On the 30th day it was gone and his house was listed for sale.

That was about 2 or 3 years ago.

The for sale sign is down and he is still here, albeit without his pool.

Last year another resident tried to erect an above-ground pool.

We were able to avoid a repeat of the initial situation simply because, well, we had that history to provide that gave our position more weight.

Over the years, the issue has come up to a membership vote, whether to allow above-ground pools.

Each time it has failed.

By the way, our above-ground pool guy tried to use the exact same "defense."

It was ineffective.



KirkW1
(Texas)

Posts:1665


01/16/2009 9:04 PM  
My biggest issue is that very few times does the community get to decide if it is worth it or not. As has already been mentioned, you at $20K into legal fees and yet to get your day in court. And theoretically you could end up recovering your fees from the owner. But as George points out, that could be a tough road and there is a good chance that you can't recover regardless of a ruling. What are the odds the guy has $20,000 in equity? Of course you could take the long road and simply place a lien and wait. Then one day it will pay off (hopefully), but that will be long after the pain of +$20K has been felt.

As a note, the whole thing could get even more expensive if the guy realizes what he has done because he could drag out the whole tearing it down. And while you may have the right to tear it down yourself, that "right" doesn't fly in every jurisdiction. Be careful of charging onto a person's property as it may not be as easy as it appears on paper.
MikeC6
(Illinois)

Posts:30


01/21/2009 4:36 PM  
Yes nobody wins, but I would think there are not many homeowners that would take this case so far. They have to be over 30k in to their lawyer and they do not want to back down.

They were told ahead of time personally that they can't put an above ground pool and there are witnesses to testify to that fact. Our lawyer thinks that is a great thing on our side along with the pool rule and the no temp or permanent structures allowed.

Since they are comparing other so called "violations" like swing set and basketball poles, they are desperate and in my opinion naive.

The mood of the people is that they understand that we had no choice, but most people are really not that interested. We did have to raise their dues so they became somewhat interested. Nobody understands the costs because we did not expect this to go on so long.

Thanks for your interest.
MicheleD
(Kentucky)

Posts:4491


01/21/2009 6:57 PM  
Posted By MikeC6 on 01/21/2009 4:36 PM


Since they are comparing other so called "violations" like swing set and basketball poles, they are desperate and in my opinion naive.





Desperate? Yes. That's an old defensive/offensive ploy in HOA disputes.

However, if you can substantiate that you do have regular and consistent enforcement of reported violations, then you really have very little to worry about.

They can "interpret" swing sets and basketball poles any way they want. Unfortunately, they probably aren't named in the governing documents as a group that gets to do that.

Most like the board is given the ability to interpret.

Most like the docs also state somewhere that the board's interpretation is binding.

Also, if their lawyer is a friend, or a friend of their dad's or their boss, or whatever, it's very likely that they are not $30K into him at all.

They probably have to pay any court fees (filings, etc), but he could well be doing all the rest for free because they're friends/family/whatever. . . .
MikeC6
(Illinois)

Posts:30


01/21/2009 7:58 PM  
Yes we can document that we have been consistent which is a big thing in our favor and is important to future boards as well. There is also a clause that states if we were not enforcing rules, it makes no difference in our enforcing a rule.

From what I know they are paying the legal fees which is really odd. It seems like a lot of money for an above ground pool. They should have put that in to an in ground pool. They are just vindictive at this point. There is nobody on the board that really knows them that well so they can't say we have something personal.

Interesting!!
GeorgerwilliamsW
(Indiana)

Posts:975


01/21/2009 10:44 PM  
To me it appears as if the association has met its match in terms of deep pockets. It may be the best course of action is to drop the suit and eat the association legal expenses. Under no circumstances let association egos get involved in this. You do have a choice.

Keep in mind that if the owner prevails, this will be an extremely costly exercise for the association. Is the potential negative outcome worth the cost. Don't get stuck pursuing something that is not in the best interest of the association.

Perhaps you can negotiate a settlement to allow an exception with a provision that the exception expires when the current owner transfers ownership of the property. (Be sure to file the agreement with the county property recorder to.)

Or you can simply seek to keep the lawsuit alive without actually taking it to court until the owner ends up moving. That could take years, of course, but some lawsuits have be extended for 20 years or more.
MicheleD
(Kentucky)

Posts:4491


01/22/2009 9:26 AM  
Nope nope nope.

Do not agree with GeorgewilliamsW at all.

It's not about egos.

Maintaining the integrity of the documents is in the best interest of the community.

I would also absolutely not "negotiate" allowing an exception.

JohnK3
(Pennsylvania)

Posts:967


01/22/2009 9:41 AM  
>>>From what I know they are paying the legal fees which is really odd. It seems like a lot of money for an above ground pool. They should have put that in to an in ground pool. They are just vindictive at this point. There is nobody on the board that really knows them that well so they can't say we have something personal.<<<

Sidebar.

In my first year Contracts class, during a case breakdown, I raised my hand and asked Prof. C. "Why would somebody spend all this money on such a minor matter?"

To which Prof. C. responded (disdainfully): "Mr. K., stongly-held principles may be pricey to defend, but no price can be placed on them."

That shut me up, tout de suite.
DonnaS
(Tennessee)

Posts:5671


01/22/2009 9:44 AM  

Mike,
This is not about the above ground pool. This is about some really stubborn person who has the "nobody is gonna tell me what to do" attitude. He could have installed a gorgeous in ground pool with the money that this has cost so far but would rather just fight this to the end.

Just keep documenting as detailed as possible. In my associations own case on "Selective Enforcement", the Judge never considered for a minute, that we were not enforcing equally, after we presented him with 67 letter regarding the same non compliance as what we were being charged with. So keep the records detailed as possible.

And I totally agree with Michelles post--- "Nope nope nope.

Do not agree with GeorgewilliamsW at all.

It's not about egos.

Maintaining the integrity of the documents is in the best interest of the community.

I would also absolutely not "negotiate" allowing an exception. "
EllenS1
(Florida)

Posts:1148


01/24/2009 4:10 PM  
Melissa,

While our docs say the Association can enter a property to remove whatever the violation is I do know I read something saying the association must have a court order from a judge before doing so.
GeorgerwilliamsW
(Indiana)

Posts:975


01/24/2009 6:22 PM  
    "This is not about the above ground pool. This is about some really stubborn person who has the "nobody is gonna tell me what to do" attitude. "
Despite the protestation to the contrary ("It's not about egos."), this is exactly what I mean about letting "association egos get involved." If the association loses sight of the fundamental issue here, it becomes just as ego driven as the unit owner. Instead of a dispute over an above ground poll, it becomes a battle of wills, a conflict of egos which hardens positions and leads to extended, bitter and very costly court battles. In no way should the association view this dispute as anything more than a covenant violation.

Further, despite the opinions expressed here, this situation is about an alleged violation of covenant restriction, not about the integrity of the rules. The integrity of the rules will not be compromised based on a court's finding for either the plaintiff or the defendant. If the defendant prevails, then the rules lacked a degree of essential integrity in the first place.

The problem here is risk and expense. If the defendant prevails, the association will have lost its battle with the in ground pool and will have to pay court costs and legal fees on both sides. Do understand that the defendant and his attorney must believe his position is sufficiently strong to risk the financial cost of an adverse outcome. He is willing to risk a great deal of money, perhaps even his house, to fight this battle.

A pre-tiral settlement in which egos are defused will do more to preserve future freedom of association action and harmony in the neighborhood than would a finding for either side. It is better not to test the validity of the covenants, than to face a non insubstantial risk that those rules will be found wanting by a judge swayed by a talented attorney for the defendant.
MicheleD
(Kentucky)

Posts:4491


01/24/2009 6:51 PM  
Still disagree with you.

Why? Because you presume that standing firm against stubborn residents is automatically a battle of "egos," when it clearly is not.

Is it a battle of egos when IPL enforces, fines and finally takes to court a homeowner for violating a zoning regulation?

Of course not.

Neither is it such when an HOA enforces, fines, and finally takes to court a resident violating THEIR regulations, which, by the way, the resident agreed to when he/she moved into the development.

I don't recall signing off on Zoning Regulations. . . .
MicheleD
(Kentucky)

Posts:4491


01/24/2009 6:52 PM  
Sorry, IPL above refers to Inspections Permits and Licenses, which is the designation for our Zoning Enforcement in our metro area.
MicheleD
(Kentucky)

Posts:4491


01/24/2009 7:29 PM  
I'm also not intimidated in the least by the implication that there's some huge risk in taking it through the courts.

As with ANY case, there's always some degree of risk of loss. Otherwise, why would it even be going through for a judgment?

But this not an ambiguous restriction.

It's pretty straightforward.

There are way more points in favor of the HOA on a situation like this, especially as the OP stated they can show consistent enforcement of this and other restrictions as well.

KirkW1
(Texas)

Posts:1665


01/25/2009 8:32 AM  
It's not about egos.

Maintaining the integrity of the documents is in the best interest of the community.



I can not categorically agree with this statement. Keeping the existing standard is not always in the best interest of the neighborhood. And maintaining the integrity of the documents is only the best thing if the neighborhood in general wants the documents maintained.

The simple fact is that the documents are typically drafted by a single person for that person's benefit and then pawned off as being in the best interest of the neighborhood. One need not look long on this forum to see how often this is painfully evident.

And this is why I have such disagreement with so many discussions about what qualifications a BOD member should have. Simplistic answers are not in the best interest of the neighborhood. And it is best to find out the pulse of the neighborhood.

The simple fact is that we don't know how the vast majority of the neighbors feel. And it is entirely possible that 95% wish this had not gone to this point.
MicheleD
(Kentucky)

Posts:4491


01/25/2009 11:46 AM  
And yet, if there were neighborhood agreement to do away with the restriction, then the homeowner spending $30,000 to get around it would have been much smarter, and would have been able to hold on to more of his money, if he had gone the route of changing the restriction instead of simply ignoring it or challenging it.

In our case, a homeowner tried 2 years in a row to change that very same restriction. Our HOA only allows in-ground pools. He put up an above-ground pool.

We enforced against him, he refused to take it down, and we moved along the enforcement spectrum.

We did allow him ample time to go through the governing documents' required steps to amend the CC&Rs, with the philosophy in mind that, yes, if the majority (or the prescribed # in the CC&Rs that allow for amendments and changes) want to now allow above-ground pools, that's what should be done.

However, we did issue our enforcement letters and had a complaint/lawsuit drafted and ready to go should the amendment effort fail.

Guess what?

After a year campaigning for an above-ground pool amendment, it failed miserably. A mere 1 percent of the membership voted FOR the amendment. Seventy-eight percent voted against it. (the others didn't vote at all.)

He still refused. We took it to the wire, and a judge gave him 30 days to remove the pool.

He took it down on the 30th day, and put his lot up for sale at the same time.

He tried again the following year. He got, I believe, something like 3 percent of the votes for it, with in the high 70s against. Again.

We anticipate him to try again. We think he's going to try to bring it up every year hoping that people get tired of voting against it. . .

At any rate, yes, he still lives here and took his For Sale sign down after about 10 months.
MicheleD
(Kentucky)

Posts:4491


01/25/2009 11:50 AM  
Oh, and I think I need to clarify the 30-day judgment thing.

His attorney finally agreed to work out a "settlement" prior to the case actually being heard.

The "settlement" was that he would sign an agreement to take the pool down in 30 days.

He also "agreed" to pay our court costs to date and half of our attorney fees.

His lawyer probably knew full well that we would have won and also would have received full payment of our attorney fees. Or he felt the "risk" was very high that is how the judgment would have gone.

KirkW1
(Texas)

Posts:1665


01/25/2009 3:23 PM  
I commend you for giving him time to try and change the rules. Unfortunately, many other boards would not give a person such an opportunity. I would say that clearly the people had spoken in your case.

Understand that I don't think all court cases are wrong. I just think that all too often BODs are quick to jump to the court case.
MikeC6
(Illinois)

Posts:30


02/06/2009 4:35 PM  
An update. They went to court and the discovery was extended again to include more discovery than the judge had aggreed to a few months back. This means they may depose the whole board (5 people). Not sure what they are getting out of that except to extend it more and keep the costs going.

The feeling of the neighbors from what I hear is about 70% say we are doing the right thing and the other 30% do not care. A lot of prople moved in here because of that rule and others. We do not have that many rules. As a board member, all we can do is be consistent on the rules. There are no egos involved here because we really do not know these people that well and that should not matter. It is our responsibility to do this.

Hope to end this by summer time.
MaryA1


Posts:0


02/07/2009 5:52 AM  
Mike,

Please explain how the "temporary structure" rule can be used to justify banning above ground pools? IMO, the rule stating "An in ground pool can be built" says it all. If the intent was to also allow above ground pools that would also have been mentioned. Just because there is nothing saying you can't do something, doesn't mean it can be done. The h/o's claim that other restrictions are being violated has no merit -- he is only clouding the issue. One member violating a restriction does not give another member the right to do the same. I would hope a judge would agree with this.
EllenS1
(Florida)

Posts:1148


02/07/2009 5:17 PM  
Michele,

I definitely agree with you. To cave in and ignore your covenants will only lead to more owners doing their own thing. It seems the best thing to do is to take it to the end. As you said it is about the "integrity of the documents."
EllenS1
(Florida)

Posts:1148


02/07/2009 5:32 PM  
George,

I couldn't disagree more. Egos have nothing to do with this. The board is required to enforce their covenants or they are meaningless. The best interest of the association is to represent all owners who purchased thinking they had protections that would keep up the values of their homes. Give in on this and what next? Owners will think they can do whatever with no consequences. If it goes to court and the assocation prevails carry it through to foreclosure. At the least this will show owners they must comply with what they promised when they purchased.
EllenS1
(Florida)

Posts:1148


02/07/2009 5:39 PM  
George,

I agree a pre-trial settlement would be best provided the above ground pool is removed.
EllenS1
(Florida)

Posts:1148


02/07/2009 6:04 PM  
KIRK,

I can assure you our board is not quick to go to court and I assume most don't. Where did you get this info? We have an owner who for over two years let her property get in such disrepair, even appplying tape on her vinyl siding which was falling off, etc (really bad). Needless to say her adjoing townhome owners were more than upset. She jerked us off for over two years saying she would take care of it with no improvement. Our hoa even said we would have it repaired and she could pay monthly to repay the association. Afer all her lies we went the legal route. The association had the repairs done. It cost a little over $6,000 for the repairs but with legal fees it is now over $20,000 and we have a judgment against her for over $20,000 with interst running. Additional leal fees are comning to collect on the judgment. Who do you think won this case?

By the way we went to mediation to avoid a lawsuit but she didn't think it was important enough to be at the mediation process.
MikeC6
(Illinois)

Posts:30


05/04/2009 6:27 AM  
Just to give an update on this. The situation is still going on. The homeowners still have the pool up and are still being allowed discovery by the Illinois courts. The fee to the association is now up to 25k. There is some talk of a possible settlement on this very soon.

What is the experience of what a good settlement would be. It is my opinion that we need to get all of that money back because the homeowner is the one that has dragged this on and increased the cost. We could live with the pool for a short time if they were to pay the legal costs. Our decs say they pay the legal bills, but the court could do whatever they feel.

They are looking at a trial in November if there is nothing soon. The settlement may come when a judge looks at both sides and makes a recommendation to one side. Any thoughts?
MicheleD
(Kentucky)

Posts:4491


05/04/2009 7:45 AM  
I can't answer that except to say that any settlement include the removal of the pool.
KirkW1
(Texas)

Posts:1665


05/04/2009 9:35 PM  
I assume the HOA has already asked for a summary judgment?

Unfortunately, you are left with hard choices.
1) You could give up and completely lose.
2) You could give up on the pool but try and recover the money (may not work).
3) You can press forward and hope for the best.
DJ1
(Ontario)

Posts:798


05/05/2009 5:09 AM  
A rule saying an inground pool can be built is just that, a rule allowing inground pools, extrapolating further isn't valid. It seems to me that it doesn't address anything further than that UNLESS it says so.

I also think the temporary structure argument isn't 'desperation' but a valid point. Have you allowed temporary structures ie swings etc or just ignored enforcement?

Is this a class war where ingrounds are allowed and above aren't?

Oh, and one last point concerning above grounds being able to be removed...so can ingrounds!

Disclaimer: We have an inground. Just as much noise, and cosmetically, alters the landscape even more than an above ground. Sure, you can't see it as much as an above ground but the rest of the impacts are the same.
MicheleD
(Kentucky)

Posts:4491


05/05/2009 5:37 AM  
Posted By DJ1 on 05/05/2009 5:09 AM


Disclaimer: We have an inground. Just as much noise, and cosmetically, alters the landscape even more than an above ground. Sure, you can't see it as much as an above ground but the rest of the impacts are the same.





It's not the "rest of the impacts" that are the issue, and I must highly and strongly disagree that it "alters the landscape even more."

It's the visibility of them that is the largest issue. Especially in our area, where pools can only be used roughly 3 months out of the year. In-grounds might get a month or two extension because they are easier to heat.

The above-ground pools are like giant tuna cans sticking up out of the yard, covered by a variety of plastic options, generally held in place with all sorts of creative objects, things like filled milk cartons hanging off of them to weigh them down.

24/7, 365-days a year, whether used or not. Add to that all sorts of "deckage," again, sticking up, often over the sight-line of any privacy fence. . .

Then you get adjacent backyards where each homeowner has one, all of different colors and materials and states of appearance, and oh my, what a lovely backyard view one has!

No, it's not the sound or activity surrounding them.

I've had both. We had an above-ground pool in our last home. It was a high-end above-ground, to be sure, but it was still a pimple on the landscape. No. Aesthetically, it was a boil. But we had a very large lot, and had pine trees surrounding the entire backyard, so few, if any, of our neighbors could see it. We did not even have to look at it everyday, as it was beyond our view behind our garage.

Above-grounds aren't allowed in this development.

We have an inground now.

Coincidentally, so does every neighbor adjacent to our lot and two more next to our neighbors. Eight pools right in a row. Does one have any idea what that would look like if they were all above-ground pools?

Seriously?


DJ1
(Ontario)

Posts:798


05/05/2009 5:51 AM  
Michele, digging a huge hole in the ground vs somthing sitting on the ground (with some surface alteration) is a much larger impact on the landscape. Visually, above ground, I agree the above ground has a greater impact.
MicheleD
(Kentucky)

Posts:4491


05/05/2009 6:38 AM  
Posted By DJ1 on 05/05/2009 5:51 AM
Michele, digging a huge hole in the ground vs somthing sitting on the ground (with some surface alteration) is a much larger impact on the landscape. Visually, above ground, I agree the above ground has a greater impact.




We are seriously going to get into semantics?

By the way, one always digs a hole in the ground with an above-ground, too. It's not simply "surface alteration." Some "alteration" can be up to 2 feet, even greater if the above-ground has a slanted bottom.

By "landscape" I'm talking about profile and appearance, not depth digging into.

The "alteration" downward is an issue where?
KirkW1
(Texas)

Posts:1665


05/05/2009 7:07 AM  
There are a number of above ground pools in this area that go into storage during the off season. As for the items holding the pool down, I just haven't seen that here. The water holds the pool quite well.

To be sure, I would consider an above ground pool a temporary structure in the vast majority of cases.
MicheleD
(Kentucky)

Posts:4491


05/05/2009 8:13 AM  
I'm talking about the winter covers, Kirk.


I'll grab some pictures this week of what that looks like. There are plenty around here.

And the types of pools you are referring to are the portable pools. Above-ground, yes, but not the Doughboy/Kayak type.

Unfortunately the restriction doesn't say portable above-ground pools are allowed or that above-ground pools, except for portable ones, are not allowed.
DJ1
(Ontario)

Posts:798


05/05/2009 8:14 AM  
Posted By MicheleD on 05/05/2009 6:38 AM
Posted By DJ1 on 05/05/2009 5:51 AM
Michele, digging a huge hole in the ground vs somthing sitting on the ground (with some surface alteration) is a much larger impact on the landscape. Visually, above ground, I agree the above ground has a greater impact.




We are seriously going to get into semantics?

By the way, one always digs a hole in the ground with an above-ground, too. It's not simply "surface alteration." Some "alteration" can be up to 2 feet, even greater if the above-ground has a slanted bottom.

By "landscape" I'm talking about profile and appearance, not depth digging into.

The "alteration" downward is an issue where?




Degree of impact.
MicheleD
(Kentucky)

Posts:4491


05/05/2009 8:29 AM  
Still just semantics.

Impact on what?

Not trying to be obtuse, but it's just such a peripheral claim.

DJ1
(Ontario)

Posts:798


05/05/2009 9:29 AM  
Just the logic of ingrounds vs above grounds from an impact perspective. Visually the above ground has greater impact from the pool itself although you still see the handrails etc with either. The pump etc also need to be somewhere. An inground probably has a shed for that which creates its own visual obstruction, whereas aboveground I've seen are usually beside the pool. The above ground may even block the view to that equipment.
MikeC6
(Illinois)

Posts:30


08/14/2009 9:49 PM  
We are still going on at this one. It was in a summary judgement hearing and the judge says he knows the Homeowner admits that the pools are against the rules before he put one up and did it anyway. he also says he knew that the Homeowner knew the rule since he moved in. these are not disputed by homeowner and it violates the rule. The judge is looking for us to admit that there are other "structures" like swing sets and retaining walls etc and we have not enforced them.

Our layer says he is just doing this so he can cover all bases before making judgement in case of appeal. It seems obvious that the homeowner is wrong here, but who knows. Hopefully, we can recover all of the costs as well
MicheleD
(Kentucky)

Posts:4491


08/14/2009 10:16 PM  
Mike, we had to do that, too, in our case against a homeowner with a dog run and two aggressive dogs.

We had to show that we were consistent in our enforcement, whether it was for supposedly "petty" violations, like trash cans not stored out of sight, or non-petty, like commercial vehicle parking.

The HOA does NOT have to "catch" each and every violation. In other words, we do not have to actively inspect and police for violations.

We have adopted a policy of enforcing against every allegation of a violation from the membership.

And we had records to show we did consistently enforce against each and every violation notification that was reported to us and verified as being a legitimate violation.

Which is why I repeat that mantra over and over again on here and in our local HOA leadership workshops.

MikeC6
(Illinois)

Posts:30


09/18/2009 10:20 AM  
We have had a ruling in summary judgement that just because someone has a swing set or a basketball pole, does allow us to still enforce this rule.

However as to the rule about temporary or permanent structures being allowed , he says is ambiguous. He is looking at some testimony from someone who created the rule or was involved to get their interpertation. We are looking at the builder, but there is nobody still there. We are hoping to find the attorney that was involved.
MaryA1


Posts:0


09/18/2009 10:41 AM  
Mike,

I have heard of court rulings stating just because one member has a basketball pole does not mean the HOA cannot deny yours. Is that what you're saying the court ruling was for your assn?
MikeC6
(Illinois)

Posts:30


09/18/2009 3:26 PM  
Yes the ruling was in the favor of the HOA. However, we need to find the person who wrote the rule now because the judge says it is ambiguous. That can be tough since the builder was bought out and those people are not around. We will try and look for the attorney that helped write it now. It is a pain that we have to do all of this since someone admitted under oath that they knew it was against the rules but wanted to put it up anyway. The legal system is a joke in Illinois.
TracieS
(Colorado)

Posts:460


09/18/2009 3:35 PM  
Posted By MikeC6 on 09/18/2009 3:26 PM
However, we need to find the person who wrote the rule now because the judge says it is ambiguous.





Our developer/builder/writer of founding documents is DEAD. Back in the 80s, most of the original owners moved/died. FHA came in and foreclosed/owned/rehabbed/sold the units. Most of us owners have owned for 15 years or less, so none of us are original.

What would my association do if a judge really wanted to talk to the person who wrote any of our documents?

Not that it's an issue for my association...more of a cerebral question.
DonnaS
(Tennessee)

Posts:5671


09/19/2009 4:05 AM  

DJ,

Just to add my view on the in ground verses the above ground pools. Ask any realtor or appraiser on sale and assessed value to a property when a pool is on the property. In grounds add between 20 to 40 thousand and above grounds add ZERO in value. What's that telling you on what is temporary or permanent
MicheleD
(Kentucky)

Posts:4491


09/19/2009 8:01 AM  
It may be possible that the developer has a few other developments that he built.

You may be able to contact the HOAs in those developments to review their CC&Rs or talk with their boards to see what, if anything, was ever done or ruled or clarified to them with a similar CC&R.
MikeC6
(Illinois)

Posts:30


11/11/2009 2:50 PM  
We have had our day in court on this matter. First, there was a summary judgement where the judge said we can enforce if other things were not enforced , Secondly, he says that our rule on Structures is somewhat not clear so we had to go and testify.

In testifying, myself and another board member testified to the fact that we have always been consistent on pools, sheds and fences.

the defendants testified that they had knowledge of the pool being against the rules and still put up the pool.

The ruling will come in a month or so, but it appeared that the judge was siding with us unless he simply intereperts a rule about temporary or permanant structures

Cautiously optomistic in Illinois.
MicheleD
(Kentucky)

Posts:4491


11/11/2009 2:56 PM  
Can't wait to hear!
EllenS1
(Florida)

Posts:1148


11/11/2009 4:06 PM  
Michelle,

You are so right. Negotiating would make your docs meaningless. Go for it and hopefully this member will pay for ignoring the covenants.
MikeC6
(Illinois)

Posts:30


12/23/2009 4:24 PM  
Thought I would give an update.

We have a final ruling from the judge in Dupage County in Illinois and he ruled in favor of the homeowner. Even though the homowner has lived here 10 years and admitted under oath, he and she knew that above ground pools were not allowed, the judge said the rule was somewhat vague.

The rule states that "an inground pool can be constructed in the rear of the lot.

There is also a rule about structures that states "no temporary or permanent structure may be constructed in the rear of the lot'

Our HOA has 70k in legal fees. The homeowner has over 90k in legal fees.

Now it appears because of a neighbor challenging the rule, all pools are allowed. The only way to change it is to have 75% of the homes change the rule to make it more clear and that is almost impossible.

Thought I would send an update.
TimB4
(Virginia)

Posts:17766


12/24/2009 4:16 AM  
Mike,

Thanks for the update.

This is a good lesson about gray area in documents, especially if it allows one type and not another of the same thing. It's a difficult thing to balance the need to be specific but not too specific when writing documents.

Will the Association be appealing? Since the homeowner won the ruling, is the Association in a possible position of picking up some or all of the owners legal fees?


Tim
DanielH1
(California)

Posts:482


12/24/2009 10:45 AM  
Will insurance pay for any of your legal bills or will you need to do a special assessment for all of it?

How many units do you have in your association?
MikeC6
(Illinois)

Posts:30


12/24/2009 11:56 AM  
No we will not appeal and cost the homeowners more money.

The homeowner who put up tyhe pool has to pay for all of his legal expenses. We are told it was 90k. He has already cost the rest of us 65k so now he can enjoy his pool next summer.
MikeC6
(Illinois)

Posts:30


12/24/2009 11:58 AM  
No insurance will not pay any legal bills. We had to raise the dues for last year and this year by $100 and this year we are adding a 2nd collection for $345 each home. We have 79 single family homes and we pay annually. We now have 2 ponds to take care of and really no rules we can enforce if some rogue neighbor wants to do anything.
DanielH1
(California)

Posts:482


12/30/2009 2:59 PM  
Thanks, Mike, for giving us a real world HOA legal lesson.

I draw several morals from this unfortunate situation.

1. A trial is a bet, not a guarantee. No matter how sure you are, you still might lose.

2. The courts are a dispute resolution system, not a justice system. You might not get justice but your dispute will be resolved, one way or another.

3. Really try to work through your disputes with a homeowner, even if you feel that you are totally right. Win or lose, a lawsuit will be expensive for everybody.

I don't think that Mike's HOA did anything wrong; I'm sorry that this happened to them.
DanielH1
(California)

Posts:482


12/30/2009 3:01 PM  
Oh, and ...

4. Don't expect insurance to rescue you.
JamaicaB
(California)

Posts:1


05/25/2011 6:33 AM  
in this case, you may consider [url=http://www.backyardocean.com]inflatable pools[/url] instead of above ground pools.
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