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Subject: Putting in a Pool - HOA problems
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Author Messages
LaurenG
(Michigan)

Posts:18


06/11/2020 8:21 AM  
Please see attached bylaws and correspondence.


--------------------
Email:

Hello,

We are installing an inground pool at XXXXX. Where do I submit the plans for board review and approval? Construction will likely start in 4-6 weeks, which should be ample time for consideration. We’ve reviewed the by-laws in depth and are familiar with the association requirements.

Thanks so much,
XXXXXXXX

--------------------
Board Reply:

Hello XXXXXX-

Hope and wish you well.

With regard to your request for constructing a pool in your property...

As per the bylaws (see section 7.17 Swimming Pools and Other Structures), we are not allowed to construct Swimming Pools are allowed. We have attached the bylaws for your reference.

Since the beginning our neighbors have clearly discussed this over many years and agreed not to have swimming pools.

Hence, we are sorry to decline your request for installing the pool.

Regards.
XXXXX Board.


----------------------

The bylaw states:

7.17 Swimming Pools and Other Structures
No swimming pools, outdoor whirlpools, hot tubs or other recreational structures shall be constructed by a Co-owner on any Unit until after the Transitional Control Date, and then only with the prior written approval of the Architectural Control Committee. No above-ground swimming pool shall be permitted at any time. The construction of any swimming pool or other recreational structure which has been approved in writing by the ACC shall be strutted in accordance with this Article and with all applicable local ordinances and/or state laws.

Recreational structures, including swimming pools, tennis courts, whirlpools, hot tubs and the like, it permitted in writing by the ACC, shall be screened from any street lying entirely within the Project, by wall, solid fence, evergreen hedge or other visual barrier as approved in writing by the ACC and in compliance with all laws and governmental regulations and ordinances pertaining thereto.

---------------------

First off, the board's e-mail reply cited the bylaws incorrectly (the bylaws do NOT say in ground pools aren't allowed). The plans have to be submitted first for approval.

This email came from ONE member of the board within an hour or two of emailing the request to submit plans.

Can our board really deny a pool? We have 2 neighbors with hot tubs (one of the neighbors being us), which falls under the exact same bylaw. All we did for that approval was tell them the location and that we would comply with local safety ordinances, and that it wouldn't be visible from the road, as the bylaws require.

Also, the transitional control date is LONG passed, by 12 years or so. We don't have an ACC, so our board is acting as it.

It seems that a couple board members just don't like pools, and so are denying based on an incorrect understanding of the bylaws.

Can they really block us from getting a pool simply because they don't like them?

SheliaH
(Indiana)

Posts:3307


06/11/2020 9:31 AM  
Your bylaws say NO SWIMMING POOLS and so it doesn't have to specify in-ground vs. above ground pools.

A swimming pool isn't the same as a hot tub (and you know this). Your bylaws also say those can only be built upon approval by the architectural control committee - apparently, your neighbors followed the rules and got them approved.

Advisory committees like an ARC work on the board's behalf, which is ultimately responsible for enforcement of the CCR (the ones you agreed to follow when you bought your home and automatically became a member of the HOA). Some communities do allow their committees to make some decisions, but those decisions can be overruled by the board because a committee IS NOT the same as a Board of Directors. In fact, the board can dictate who serves on that committee, and committee members can be removed by the board. In this case, you don't have an ARC, so it's ok for the board to take on that role. You may want to look at the rest of the Bylaws and look for language that gives the board the authority to enforce the CCRs.

The developer could have written this part of the CCRs like this because there may have been an ARC at the time it was running things. However, once they leave and turn the community over to the homeowners, the homeowners are welcome to add, subtract or amend the documents (Bylaws and CCRs) according to the instructions written therein (e.g. to amend documents you need X percentage of homeowners to approve.) These aren't the 10 commandments.

I suspect the board member sent you that response to save you the time and trouble of asking. It's not necessarily a matter of one person not wanting pools - besides you didn't say if you asked all of them anyway. If you prefer, you can go ahead and formally submit your plans - and possibly be denied - again.

I realize you may not agree with any of this, but if you don't see anyone else with a POOL, you know why. Want to change this? Rally together your neighbors and push for an amendment to the CCRs if you can convince enough of them. Otherwise, you'll just have to live with it
ND
(PA)

Posts:458


06/11/2020 9:36 AM  
To answer your question, "Can our board really deny a pool?" . . .

Unfortunately, based on my read of your referenced documents, it sounds as though they do have the power to deny a pool.

Since you don't have an ACC, the Board acts as the ACC and per the reference, it seems to give the ACC/Board authority to deny the request:

- "No swimming pools . . . shall be constructed . . . until after the Transitional Control Date, and then only with the prior written approval of the ACC."
- "Recreational structures, including swimming pools . . ., it (if?) permitted in writing by the ACC . . .".

I agree that those references indicate that pools COULD be installed; however, they both require prior approval to do so from the ACC/Board. If approval is not granted, then consequently a pool cannot be installed.

Until you can convince the Board to change their minds, I think you are out of luck. And I wouldn't recommend proceeding with pool installation unless you first get approval in writing. Doing so will certainly create a worse situation.

A few things to try:
- You could try and gain support from other homeowners.
- Request documentation of the decision and referenced conversation/agreement among neighbors that pools are not allowed.
- Try to get yourself and like-minded people on the Board, and then you help to make those decisions.
LaurenG
(Michigan)

Posts:18


06/11/2020 9:37 AM  
First of all, the bylaws state: No swimming pools, outdoor whirlpools, hot tubs or other recreational structures shall be constructed by a Co-owner on any Unit until after the Transitional Control Date. We are after the transitional control date.

The reason no one else has a pool is because most of our lots are built on swamp/ cliffs. There are only about 4-5 properties (of 65) that could possibly build one. Our neighbors and us are one of them.
LaurenG
(Michigan)

Posts:18


06/11/2020 9:48 AM  
First of all, the bylaws state: No swimming pools, outdoor whirlpools, hot tubs or other recreational structures shall be constructed by a Co-owner on any Unit until after the Transitional Control Date. We are after the transitional control date.

The reason no one else has a pool is because most of our lots are built on swamp/ cliffs. There are only about 4-5 properties (of 65) that could possibly build one. Our neighbors and us are one of them.

I am not one to argue things that are in place, but the bylaws were written to allow these things, with approval. Otherwise, it would clearly say NO POOLS ALLOWED OF ANY KINd. Which, it doesn't.
DeidreB
(Virginia)

Posts:97


06/11/2020 9:49 AM  
I concur with ND and also share your frustration with the Board's apparent dismissive reply to your communication. It seems that the Board or whoever replied has decided there is a standing prohibition against swimming pools when in reality, there is a post transition requirement to gain ACC (Board in your case since you do not have an ACC) approval.

I think the board has a fiduciary duty to review your request and provide a response that is more correct than what they provided. If the Board, acting as ACC, decides not to approve then I would follow up and ask for some logical reasoning for their decision since it meets the visual screening requirements.

Arbitrary decisions by boards to limit free use of one's private property don't stand up well to close scrutiny. In the meantime I would suspend construction until you have this worked out in final black and white.
LaurenG
(Michigan)

Posts:18


06/11/2020 9:52 AM  
Luckily construction isn't actually scheduled yet. We tried getting on top of things to allow ample time to submit full plans, and address any concerns that may have been had (and ensure/ work out the kinks leading to approval).

I think from what I read, they have to give reason for the denial once plans are submitted (they didn't even allow plans to be submitted). I really think this is one board member who may have misunderstood the bylaws honestly.

Yes, logical reasoning would have been helpful so a discussion could be had.

Thanks for your opinion!
AugustinD


Posts:3495


06/11/2020 10:05 AM  
Posted By LaurenG on 06/11/2020 9:48 AM
First of all, the bylaws state: No swimming pools, outdoor whirlpools, hot tubs or other recreational structures shall be constructed by a Co-owner on any Unit until after the Transitional Control Date. We are after the transitional control date.
Yup, and there's more. I agree with ND's response. I do not find your interpretation logical, based on much experience (like ND) with covenants.

If you want, you could hire an attorney to see what she or he says. Also where I am the municipal pools are shut down. Some city staff are saying consideration is being given to shutting at least some of the muni pools down permanently. The city now cannot afford them. The risk of diseases like COVID-19 looms. I think this is among your most powerful arguments to win approval of one's private pool.

Related aside: Is this restriction on swimming pools really listed in the section of you HOA's governing documents called "Bylaws"? Normally the governing document that would have a restriction on swimming pools would be in what is known as either the covenants, CC&Rs, or Declaration.
LaurenG
(Michigan)

Posts:18


06/11/2020 10:37 AM  
Can you explain what you mean here? "I do not find your interpretation logical, based on much experience (like ND) with covenants. "

Is this restriction on swimming pools really listed in the section of you HOA's governing documents called "Bylaws"? Normally the governing document that would have a restriction on swimming pools would be in what is known as either the covenants, CC&Rs, or Declaration.

-----

We have one document, titled the bylaws. There is no other documents called the covenants, CC&Rs, etc. We do have a master deed thing too. But yeah, none of that other stuff.
AugustinD


Posts:3495


06/11/2020 10:48 AM  
Posted By LaurenG on 06/11/2020 10:37 AM
Can you explain what you mean here? "I do not find your interpretation logical, based on much experience (like ND) with covenants. "
Your interpretation is disregarding the part of the bylaw that says, "... until after the Transitional Control Date, and then only with the prior written approval of the Architectural Control Committee." What does the "and then only with the prior written approval of the Architectural Control Committee" mean to you?

If push came to shove and this went to court, a judge would first, try to interpet it using its "plain meaning." (I am not writing this off the top of my head. This is a rule of legal statutory-covenant-ordinance-yada interpretation.) If the meaning is truly unclear, then the judge would use other rules of interpretation. But I do not see anything unclear here. The Board (serving as the Arch. Control. Committee, which is quite common) won't approve this.

There are a few ways to legally demand that you be allowed a pool, but first, I think you need to take ownership of what a fair interpretation of the Bylaw/covenant is. Or if you disagree with ND, myself, and others on the point, hire an attorney.

You did right to start your homework here. Hopefully it's a bit of an education, even if you do not buy what the veterans here are saying.
LaurenG
(Michigan)

Posts:18


06/11/2020 10:53 AM  
Posted By AugustinD on 06/11/2020 10:48 AM
Posted By LaurenG on 06/11/2020 10:37 AM
Can you explain what you mean here? "I do not find your interpretation logical, based on much experience (like ND) with covenants. "
Your interpretation is disregarding the part of the bylaw that says, "... until after the Transitional Control Date, and then only with the prior written approval of the Architectural Control Committee." What does the "and then only with the prior written approval of the Architectural Control Committee" mean to you? .




We dont' have an ACC... so it really means nothing to me 🤷‍♀️. I looked over our bylaws TONS of times and do not see where the board is allowed to act as the ACC in the absence of an ACC. My plan is to form the ACC and then approve my own pool 🤣🤣🤣

I do not know how ONE PERSON from the board can simply can tell me "nope" without even looking at our proposal or even giving us reason. We will hire an attorney if it comes down to it. It isn't so much that I am throwing a temper tantrum, more like I don't like that one person who doesn't like pools can arbitrarily tell an entire neighborhood no, when the bylaws WOULD allow for it if approved. That is all. It just doesn't seem right.
AugustinD


Posts:3495


06/11/2020 11:12 AM  
Posted By LaurenG on 06/11/2020 10:53 AM
We dont' have an ACC... so it really means nothing to me 🤷‍♀️.
Nationwide, the absence of an ACC happens a lot. But the ACC is appointed by the Board. The courts and any competent HOA attorney will tell you that, in the absence of an ACC, the board makes the decisions the ACC would.
Posted By LaurenG on 06/11/2020 10:53 AM
I do not know how ONE PERSON from the board can simply can tell me "nope" without even looking at our proposal or even giving us reason.
I agree your application must go to the whole board, and a formal board vote must be put into Board meeting minutes or a formal letter to you. You should go ahead and formally apply, writing all the directors or your manager or whoever the "registered agent" is for your HOA, as listed at the Michigan Secretary of State web site, corporations section. Send your application certified mail, return receipt requested.
PatJ1
(North Carolina)

Posts:98


06/11/2020 11:30 AM  
A lot of good responses heading in good directions based on the information you provided. If you're looking for a fail safe way put in an in ground pool in your community, spend the money to have an attorney review the governing documents and give you an opinion.

If you can afford the pool, you can get legal advise that may help you get your pool installed. It's a small price to pay if you want your pool.

Board members are volunteers. Many have no idea what they're doing. Educate them. Don't beat them up.
ND
(PA)

Posts:458


06/11/2020 11:31 AM  
It could also be that, as was alluded to in the reply that you received, this discussion and decision to not allow pools had already occurred previously (and perhaps been documented in meeting minutes or some other way). So a quick reply from the one Board Member, knowing that the entire Board (however many people that is) is already in complete agreement that pools are not allowed. So in an effort to save everyone time (including you), they just replied back that pools aren't allowed.

Or it could also be a single Board Member making an improper decision on behalf of the rest of the Board. You are right to probe further.

All that said, I would still do as AugustinD suggested, and prepare a formal architectural improvement package in accordance with whatever you bylaws might suggest is proper content, and then submit it as suggested as a well as via email to all Board Members and Management Co (if you have one). To strengthen your package, you could even have adjacent neighbors sign somewhere that they have been presented the plans and have no issues with your plans.

Given that your docs reference an ACC, I'm assuming there is some sort of info in there about how or what to submit to this ACC.

Submitting your architectural package would then warrant a more formal response to your request as well as possibly give you opportunity to meet with them to discuss. You could request a meeting as well so you can perhaps better understand their perspective.

I will add that if I were in your position and wanted to install a pool, that I would be equally as upset about being so quickly denied the ability to do something within my own property that the HOA's governing documents seem to permit. But again, based on what your documents say, it appears they are allowed to take that first step of denying your request (for any reason they choose). You just need to convince them otherwise, and it could perhaps require legal assistance.
LaurenG
(Michigan)

Posts:18


06/11/2020 12:03 PM  
Posted By ND on 06/11/2020 11:31 AM
It could also be that, as was alluded to in the reply that you received, this discussion and decision to not allow pools had already occurred previously (and perhaps been documented in meeting minutes or some other way). So a quick reply from the one Board Member, knowing that the entire Board (however many people that is) is already in complete agreement that pools are not allowed. So in an effort to save everyone time (including you), they just replied back that pools aren't allowed.

Or it could also be a single Board Member making an improper decision on behalf of the rest of the Board. You are right to probe further.

All that said, I would still do as AugustinD suggested, and prepare a formal architectural improvement package in accordance with whatever you bylaws might suggest is proper content, and then submit it as suggested as a well as via email to all Board Members and Management Co (if you have one). To strengthen your package, you could even have adjacent neighbors sign somewhere that they have been presented the plans and have no issues with your plans.

Given that your docs reference an ACC, I'm assuming there is some sort of info in there about how or what to submit to this ACC.

Submitting your architectural package would then warrant a more formal response to your request as well as possibly give you opportunity to meet with them to discuss. You could request a meeting as well so you can perhaps better understand their perspective.

I will add that if I were in your position and wanted to install a pool, that I would be equally as upset about being so quickly denied the ability to do something within my own property that the HOA's governing documents seem to permit. But again, based on what your documents say, it appears they are allowed to take that first step of denying your request (for any reason they choose). You just need to convince them otherwise, and it could perhaps require legal assistance.




Honestly, it's all just a little sketchy. I know the president fairly well, and so I messaged her about it, she wasn't even included in the email and knew nothing about the correspondence that was had.

I have emailed asking for a meeting! Thanks "I would be equally as upset about being so quickly denied the ability to do something within my own property that the HOA's governing documents seem to permit. " <---- hit the nail on the head. That is the frustration.
MelissaP1
(Alabama)

Posts:9413


06/11/2020 5:50 PM  
You most likely do have CC&R's. They are on file at your local courthouse records department. They are PUBLIC documents. By-laws are internal to the HOA. CC&R's are on file as are Articles of Incorporation which incorporates the HOA. Those documents are filed with the state. Also are PUBLIC documents.

Hate to burst your bubble but pools do NOT add any type of "value" to a home. Many times they can even reduce it. Too much of a liability and maintenance issues. Plus putting one in a HOA that says "No pools" is just asking for trouble.

BTW: If you did install this pool, the HOA could have you dig it all up at your cost if not approved. Are you prepared for that?

Former HOA President
GeorgeS21
(Florida)

Posts:2816


06/11/2020 7:21 PM  
Melissa,

You need to be careful about these generalizations.

Pools in my area of Florida add about $40k low end, and as much as $100k high end ... it was this way in Virginia when I lived there, and in Texas when I lived there, and in Alabama when I lived there.
MarkW18


Posts:1195


06/11/2020 8:19 PM  
Posted By MelissaP1 on 06/11/2020 5:50 PM
You most likely do have CC&R's. They are on file at your local courthouse records department. They are PUBLIC documents. By-laws are internal to the HOA. CC&R's are on file as are Articles of Incorporation which incorporates the HOA. Those documents are filed with the state. Also are PUBLIC documents.

Hate to burst your bubble but pools do NOT add any type of "value" to a home. Many times they can even reduce it. Too much of a liability and maintenance issues. Plus putting one in a HOA that says "No pools" is just asking for trouble.

BTW: If you did install this pool, the HOA could have you dig it all up at your cost if not approved. Are you prepared for that?



Actually, that is the furthest thing from the truth. Pools are a standard add-on to an appraisal report, if one has an inground pool.There is a standard value placed on the pool. Whether it adds value is dependent on the buyer and whether they feel the asking price, including the pool is something they are willing to pay for.
MarkW18


Posts:1195


06/11/2020 8:24 PM  
I spoke with a HOA lawyer friend o mine. Yes, pools are permitted, The sentence in bold is the qualifier.

No swimming pools, outdoor whirlpools, hot tubs or other recreational structures shall be constructed by a Co-owner on any Unit until after the Transitional Control Date, and then only with the prior written approval of the Architectural Control Committee. No above-ground swimming pool shall be permitted at any time. The construction of any swimming pool or other recreational structure which has been approved in writing by the ACC shall be strutted in accordance with this Article and with all applicable local ordinances and/or state laws.

The ARC or Board would have to have a good reason why they wouldn't approve,. If they don't want them, they need to amend their governing docs to prohibit. Good luck with that!
LaurenG
(Michigan)

Posts:18


06/12/2020 5:37 AM  
Posted By MarkW18 on 06/11/2020 8:24 PM
I spoke with a HOA lawyer friend o mine. Yes, pools are permitted, The sentence in bold is the qualifier.

No swimming pools, outdoor whirlpools, hot tubs or other recreational structures shall be constructed by a Co-owner on any Unit until after the Transitional Control Date, and then only with the prior written approval of the Architectural Control Committee. No above-ground swimming pool shall be permitted at any time. The construction of any swimming pool or other recreational structure which has been approved in writing by the ACC shall be constructed in accordance with this Article and with all applicable local ordinances and/or state laws.

The ARC or Board would have to have a good reason why they wouldn't approve,. If they don't want them, they need to amend their governing docs to prohibit. Good luck with that!




Thank you. Exactly. They aren't prohibited. They didn't even give a reason for the "denial" which honestly sounded like the one person who wrote the email legit didn't even understand that section of the bylaws.
LaurenG
(Michigan)

Posts:18


06/12/2020 5:38 AM  
Posted By MarkW18 on 06/11/2020 8:19 PM
Posted By MelissaP1 on 06/11/2020 5:50 PM
You most likely do have CC&R's. They are on file at your local courthouse records department. They are PUBLIC documents. By-laws are internal to the HOA. CC&R's are on file as are Articles of Incorporation which incorporates the HOA. Those documents are filed with the state. Also are PUBLIC documents.

Hate to burst your bubble but pools do NOT add any type of "value" to a home. Many times they can even reduce it. Too much of a liability and maintenance issues. Plus putting one in a HOA that says "No pools" is just asking for trouble.

BTW: If you did install this pool, the HOA could have you dig it all up at your cost if not approved. Are you prepared for that?



Actually, that is the furthest thing from the truth. Pools are a standard add-on to an appraisal report, if one has an inground pool.There is a standard value placed on the pool. Whether it adds value is dependent on the buyer and whether they feel the asking price, including the pool is something they are willing to pay for.




In our market, they certainly add value. Probably depends on where you are located. People around here literally shop for pools and then look at the house 🤣
LetA
(Nevada)

Posts:989


06/12/2020 10:05 AM  
Posted By LaurenG on 06/11/2020 9:52 AM
Luckily construction isn't actually scheduled yet. We tried getting on top of things to allow ample time to submit full plans, and address any concerns that may have been had (and ensure/ work out the kinks leading to approval).

I think from what I read, they have to give reason for the denial once plans are submitted (they didn't even allow plans to be submitted). I really think this is one board member who may have misunderstood the bylaws honestly.

Yes, logical reasoning would have been helpful so a discussion could be had.

Thanks for your opinion!




Did you ask your pool builder to be your advocate to the ARC for your HOA? Usually contractors like these are well versed in dealing with HOAs and know the ins and outs. I would ask your contractor first.
LaurenG
(Michigan)

Posts:18


06/12/2020 10:16 AM  
Posted By LetA on 06/12/2020 10:05 AM
Posted By LaurenG on 06/11/2020 9:52 AM
Luckily construction isn't actually scheduled yet. We tried getting on top of things to allow ample time to submit full plans, and address any concerns that may have been had (and ensure/ work out the kinks leading to approval).

I think from what I read, they have to give reason for the denial once plans are submitted (they didn't even allow plans to be submitted). I really think this is one board member who may have misunderstood the bylaws honestly.

Yes, logical reasoning would have been helpful so a discussion could be had.

Thanks for your opinion!




Did you ask your pool builder to be your advocate to the ARC for your HOA? Usually contractors like these are well versed in dealing with HOAs and know the ins and outs. I would ask your contractor first.





Yes actually-- we told him we were having HOA trouble and he volunteered to help. Said he had to deal with them all the time!
LaurenG
(Michigan)

Posts:18


06/12/2020 11:06 AM  
I have all of the documents available for our neighborhood. This is all I can find about CC&R:

The Developer does hereby declare that upon the recording of this Master Deed, the Condominium shall be a Project under the Act and the Project shall be held, conveyed, encumbered, leased, rented, occupied, improved or in any other manner used, subject to the provisions of the Act and to the covenants, conditions, restrictions, uses, limitations and affirmative obligations contained in this Master Deed, all of which shall be deemed to run with the land and to be a burden upon and a benefit to the Developer, its successors and assigns, and to any persons who may acquire or own an interest in such real property, their grantees, successors, heirs, personal representatives, administrators and assigns.
LaurenG
(Michigan)

Posts:18


06/12/2020 11:08 AM  
Posted By LaurenG on 06/12/2020 11:06 AM
I have all of the documents available for our neighborhood. This is all I can find about CC&R:

The Developer does hereby declare that upon the recording of this Master Deed, the Condominium shall be a Project under the Act and the Project shall be held, conveyed, encumbered, leased, rented, occupied, improved or in any other manner used, subject to the provisions of the Act and to the covenants, conditions, restrictions, uses, limitations and affirmative obligations contained in this Master Deed, all of which shall be deemed to run with the land and to be a burden upon and a benefit to the Developer, its successors and assigns, and to any persons who may acquire or own an interest in such real property, their grantees, successors, heirs, personal representatives, administrators and assigns.




I also find it suspect that in the fences bylaw they also mention that fences shall be permitted around around pools.

7.14 Fences and Obstructions. No fence:s, walls or similar structures shall be erected on any Unit until after the Transitional Control pate, and then only with the prior written approval of the Architectural Control Committee. Fences enclosing swimming pools approved by the Architectural Control Committee under Section 7.17 shall be permitted only if approved by the Architectural Control Committee. In addition, no fence, wall, structure, planting or obstruction shall be erected, established or maintai.ned on any corner within a triangular area formed by the street lines and a connecting line which is at a point twenty-five (25) feet from the intersection of such street lines, which shall have a height that is more than two (2) feet; provided, however, shade trees with wide branches which are at least eight (8) feet above ground shall be permitted within such area. No fences in any front yard and no chain link fences shall be pennitted on any Unit at any time.
AugustinD


Posts:3495


06/12/2020 12:49 PM  
Posted By LaurenG on 06/12/2020 11:08 AM
I also find it suspect that in the fences bylaw they also mention that fences shall be permitted around around pools.
How come you are ignoring the qualifier, "only if approved by the architectural control committee"?
MarkW18


Posts:1195


06/12/2020 1:04 PM  
Posted By AugustinD on 06/12/2020 12:49 PM
Posted By LaurenG on 06/12/2020 11:08 AM
I also find it suspect that in the fences bylaw they also mention that fences shall be permitted around around pools.
How come you are ignoring the qualifier, "only if approved by the architectural control committee"?



I am SHOCKED. You profess to have much experience in reading covenants.

In the OP's first post, they copied the denial response from board "maybe the board". They, whoever, they are, state they are NOT allowed to build swimming pools and BTW our, your neighbors decided, over the years, not to have swimming pool. That is BS. Then they attach the Bylaws, which contradicts their statement.

It is quite clear that the developer didn't want any resident doing any type of construction on their property until the association was turned over to the owner. The covenants give the owner the legal right to put in a pool and a fence as long as approval is given by the ARC, meaning you have to follow the guidelines set forth, as long as all applicable laws and codes adhered to!

If the neighbors don't want pool, then amend the governing documents, otherwise this would NEVER stand up in court. The other option is vote these people out and then re-apply the application.
DeidreB
(Virginia)

Posts:97


06/12/2020 1:10 PM  
Home run response by MarkW18.
AugustinD


Posts:3495


06/12/2020 1:40 PM  
Posted By MarkW18 on 06/12/2020 1:04 PM
The covenants give the owner the legal right to put in a pool and a fence as long as approval is given by the ARC, meaning [snip junk]
Meaning you have to have approval from the ARC. Your point seems to be that the ARC has to reasonable and fair. Doh.
MarkW18


Posts:1195


06/12/2020 2:05 PM  
Yep..A HOA in Virginia thought they were "fair and reasonable" and it cost them $500,000 and a town square.
LaurenG
(Michigan)

Posts:18


06/12/2020 4:22 PM  
Posted By AugustinD on 06/12/2020 12:49 PM
Posted By LaurenG on 06/12/2020 11:08 AM
I also find it suspect that in the fences bylaw they also mention that fences shall be permitted around around pools.
How come you are ignoring the qualifier, "only if approved by the architectural control committee"?




The approval is based on it following the qualifiers: not visible from the road, following local regulations, and enclosed by a fence.

I am not ignoring anything. It doesn't say "no pools because some neighbors decided over the years they don't want to allow them."
LaurenG
(Michigan)

Posts:18


06/12/2020 4:26 PM  
Posted By MarkW18 on 06/12/2020 1:04 PM
Posted By AugustinD on 06/12/2020 12:49 PM
Posted By LaurenG on 06/12/2020 11:08 AM
I also find it suspect that in the fences bylaw they also mention that fences shall be permitted around around pools.
How come you are ignoring the qualifier, "only if approved by the architectural control committee"?



In the OP's first post, they copied the denial response from board "maybe the board". They, whoever, they are, state they are NOT allowed to build swimming pools and BTW our, your neighbors decided, over the years, not to have swimming pool. That is BS. Then they attach the Bylaws, which contradicts their statement.

It is quite clear that the developer didn't want any resident doing any type of construction on their property until the association was turned over to the owner. The covenants give the owner the legal right to put in a pool and a fence as long as approval is given by the ARC, meaning you have to follow the guidelines set forth, as long as all applicable laws and codes adhered to!

If the neighbors don't want pool, then amend the governing documents, otherwise this would NEVER stand up in court. The other option is vote these people out and then re-apply the application.




Thank you! This is exactly what I have been trying to say -- if they intended to not be allowed, they would have said no pools ever (similar to how it says no above ground pools), but it says WITH APPROVAL and then sets out the parameters for approval : "shall be screened from any street lying entirely within the Project, by wall, solid fence, evergreen hedge or other visual barrier as approved in writing by the Architectural Control Committee and in compliance with all laws and governmental regulations and ordinances pertaining thereto."

Again, the denial from this person who spoke on behalf of the whole board, without even speaking to the board members, said pools were NOT allowed, and cited a bylaw that doesn't clearly spell out that in-ground pools are prohibited.
LaurenG
(Michigan)

Posts:18


06/12/2020 4:28 PM  
Posted By AugustinD on 06/12/2020 1:40 PM
Posted By MarkW18 on 06/12/2020 1:04 PM
The covenants give the owner the legal right to put in a pool and a fence as long as approval is given by the ARC, meaning [snip junk]
Meaning you have to have approval from the ARC. Your point seems to be that the ARC has to reasonable and fair. Doh.




They can't say no citing a bylaw that doesn't disallow them. That response is garbage and also not even correct.
SheliaH
(Indiana)

Posts:3307


06/12/2020 5:51 PM  
And this, ladies and gentlemen, is why it's usually a good thing to ask about this stuff in advance before you put down money for projects like this.

Earlier you said most of the homes can't have pools because of swamps or cliffs, but yours is one of the few that could possibly have one. I'm curious about that "possibly" - maybe you should check if the previous owner of your home asked for a pool and got shut down because the land wasn't right. You might not live off a cliff, but it may be building this pool may create problems for your neighbors. In which case you'd have a lot more than CCRs to worry about.

In anycase, this looks like you're going to have to delay putting in that pool until this gets resolved and I don't think it'll happen in a few weeks. You may as well put in for a formal review so you can an official statement one way or ane. If you get turned down get a lawyer and good luck to you.

You don't say how long you've been in the community, but you might want to look at the rest of your documents to see what else is in there so you don't come across weird surprises like this again.
LaurenG
(Michigan)

Posts:18


06/12/2020 6:40 PM  
Posted By SheliaH on 06/12/2020 5:51 PM
And this, ladies and gentlemen, is why it's usually a good thing to ask about this stuff in advance before you put down money for projects like this.

Earlier you said most of the homes can't have pools because of swamps or cliffs, but yours is one of the few that could possibly have one. I'm curious about that "possibly" - maybe you should check if the previous owner of your home asked for a pool and got shut down because the land wasn't right. You might not live off a cliff, but it may be building this pool may create problems for your neighbors. In which case you'd have a lot more than CCRs to worry about.

In anycase, this looks like you're going to have to delay putting in that pool until this gets resolved and I don't think it'll happen in a few weeks. You may as well put in for a formal review so you can an official statement one way or ane. If you get turned down get a lawyer and good luck to you.

You don't say how long you've been in the community, but you might want to look at the rest of your documents to see what else is in there so you don't come across weird surprises like this again.




We did not put money down for the project. I am friends with the president of the HOA (resigning) and if 15 years, since the development started, no one has asked for a pool.
LaurenG
(Michigan)

Posts:18


06/14/2020 6:15 AM  
This was their longer response when we asked them to further explain

We have not allowed any neighbor to have swimming pool (in-ground or otherwise) in the past owing to some of the following reasons.
These points were discussed a few years ago in annual meetings and several voted against having swimming pool.

1. Safety of pools in our neighborhood was raised by several neighbors with young kids and pets.
2. Keeping the pool completely hidden from streets and from neighbors who are closely located is very difficult. We cannot install fence to hide from the street view.
3. Neighborhood home values go down when some houses can have pool while others (with less space in their yard) cannot have unfortunately.
4. Controlling the noise level will be a challenge
5. Review of architectural plans for pool would require hiring agency and the cost will have to be shared among neighbors - this is not fair for those who don’t want pools.
AugustinD


Posts:3495


06/14/2020 6:44 AM  
Posted By LaurenG on 06/14/2020 6:15 AM
This was their longer response when we asked them to further explain[:]We have not allowed any neighbor to have swimming pool (in-ground or otherwise) in the past owing to some of the following reasons. These points were discussed a few years ago in annual meetings and several voted against having swimming pool.
This vote is nonsense. That the board thinks such a vote has any legal power says a lot about its level of competence.

To prohibit pools, first the membership would have to vote formally to amend the covenants. Second, such a restriction is so enormous that I am not sure it would pass court muster.

Posted By LaurenG on 06/14/2020 6:15 AM
1. Safety of pools in our neighborhood was raised by several neighbors with young kids and pets.
2. Keeping the pool completely hidden from streets and from neighbors who are closely located is very difficult. We cannot install fence to hide from the street view.
3. Neighborhood home values go down when some houses can have pool while others (with less space in their yard) cannot have unfortunately.
4. Controlling the noise level will be a challenge
5. Review of architectural plans for pool would require hiring agency and the cost will have to be shared among neighbors - this is not fair for those who don’t want pools.
I reject 1 through 4 as unreasonable. As for 5., every member of this condominium bought into it with the understanding that the ARC (or Board) could approve in-ground swimming pools. This means that members bought into the condo with the understanding that they would have to pay ancillary costs for review of architectural yada plans. The board should find out what permitting is required (even if it has to pay a consultant once or twice). The OP could also offer to reimburse the condo association the cost of the review by the agency/consultant the board selects, with the agency consultant informed it answers to the board only. Play the COVID-19 card as well.

You should start with a demand letter lite:

Dear Board,

We have received your rejection of our application for an in-ground swimming pool. We do not feel the vote that the informal members' vote the Board referenced can lawfully prohibit pools. Reasons 1 through 4 do not appear to be reasonable. As for Reason 5: Member of this condominium bought into it with the understanding that the ARC (or Board) could approve in-ground swimming pools. We believe this means that members bought into the condo with the understanding that they would have to pay ancillary costs for review of relevant architectural plans. We feel the board should find out what permitting is required (even if it has to pay a consultant once or twice). If the Board can get an estimate of this cost in advance, then we will also consider reimbursing the condominium for this cost.

We realize this is a lot of work. But we are operating on the premise that the Bylaws/convenants have the force of legal terms of a contract. It seems the courts take the latter position. We believe the covenants allow swimming pools as long as the ARC (or Board) has confirmed all permitting requirements are met.

Would you please re-consider your position and let us know your response by July 1?

Sincerely,

[name]
[address]
[email addie]
[phone number]

After the board rejects your position, post back here for the next demand letter.
AugustinD


Posts:3495


06/14/2020 6:46 AM  
Add to letter, towards the end: Also, COVID-19 has now made it difficult to enjoy swimming at municipal pools. We feel that this should be considered as another reason to allow our installation of an in-ground pool.
LaurenG
(Michigan)

Posts:18


06/14/2020 6:49 AM  
Posted By AugustinD on 06/14/2020 6:44 AM
Posted By LaurenG on 06/14/2020 6:15 AM
This was their longer response when we asked them to further explain[:]We have not allowed any neighbor to have swimming pool (in-ground or otherwise) in the past owing to some of the following reasons. These points were discussed a few years ago in annual meetings and several voted against having swimming pool.
This vote is nonsense. That the board thinks such a vote has any legal power says a lot about its level of competence.

To prohibit pools, first the membership would have to vote formally to amend the covenants. Second, such a restriction is so enormous that I am not sure it would pass court muster.

Posted By LaurenG on 06/14/2020 6:15 AM
1. Safety of pools in our neighborhood was raised by several neighbors with young kids and pets.
2. Keeping the pool completely hidden from streets and from neighbors who are closely located is very difficult. We cannot install fence to hide from the street view.
3. Neighborhood home values go down when some houses can have pool while others (with less space in their yard) cannot have unfortunately.
4. Controlling the noise level will be a challenge
5. Review of architectural plans for pool would require hiring agency and the cost will have to be shared among neighbors - this is not fair for those who don’t want pools.
I reject 1 through 4 as unreasonable. As for 5., every member of this condominium bought into it with the understanding that the ARC (or Board) could approve in-ground swimming pools. This means that members bought into the condo with the understanding that they would have to pay ancillary costs for review of architectural yada plans. The board should find out what permitting is required (even if it has to pay a consultant once or twice). The OP could also offer to reimburse the condo association the cost of the review by the agency/consultant the board selects, with the agency consultant informed it answers to the board only. Play the COVID-19 card as well.

You should start with a demand letter lite:

Dear Board,

We have received your rejection of our application for an in-ground swimming pool. We do not feel the vote that the informal members' vote the Board referenced can lawfully prohibit pools. Reasons 1 through 4 do not appear to be reasonable. As for Reason 5: Member of this condominium bought into it with the understanding that the ARC (or Board) could approve in-ground swimming pools. We believe this means that members bought into the condo with the understanding that they would have to pay ancillary costs for review of relevant architectural plans. We feel the board should find out what permitting is required (even if it has to pay a consultant once or twice). If the Board can get an estimate of this cost in advance, then we will also consider reimbursing the condominium for this cost.

We realize this is a lot of work. But we are operating on the premise that the Bylaws/convenants have the force of legal terms of a contract. It seems the courts take the latter position. We believe the covenants allow swimming pools as long as the ARC (or Board) has confirmed all permitting requirements are met.

Would you please re-consider your position and let us know your response by July 1?

Sincerely,

[name]
[address]
[email addie]
[phone number]

After the board rejects your position, post back here for the next demand letter.




Thank you so much! Great ideas here.
GenoS
(Florida)

Posts:3867


06/14/2020 1:32 PM  
Posted By DeidreB on 06/12/2020 1:10 PM
Home run response by MarkW18.

I think not.

"as long as approval is given by the ARC" means that approval is a prerequisite. There's nothing that compels the ARC or the Board to approve an application, whether or not "the guidelines are followed".
DeidreB
(Virginia)

Posts:97


06/14/2020 2:10 PM  
Geno a simple read of the excerpt of the governing docs provided by the OP proves without a doubt that in ground pools are not prohibited. MarkW18's response was "spot on" and since that post even more commentary on this thread corroborates this. I never said ARC/ACC or Board approval is not a prerequisite nor did Mark (at least not in the post I was replying to which is the subject of your most recent post). I welcome and value your thoughts as you post on here often. I am simply clarifying this so future readers of this post do not get confused or draw incorrect conclusions.
MarkW18


Posts:1195


06/14/2020 3:15 PM  
Posted By GenoS on 06/14/2020 1:32 PM
Posted By DeidreB on 06/12/2020 1:10 PM
Home run response by MarkW18.

I think not.

"as long as approval is given by the ARC" means that approval is a prerequisite. There's nothing that compels the ARC or the Board to approve an application, whether or not "the guidelines are followed".



You're right, but based on the wording, inground pool are NOT prohibited. If it were me, I would take their sorry asses to court!
MarkW18


Posts:1195


06/14/2020 3:18 PM  
Posted By GenoS on 06/14/2020 1:32 PM
Posted By DeidreB on 06/12/2020 1:10 PM
Home run response by MarkW18.

I think not.

"as long as approval is given by the ARC" means that approval is a prerequisite. There's nothing that compels the ARC or the Board to approve an application, whether or not "the guidelines are followed".



Did you just wake up and now smelling the coffee? No one is saying ARC approval is not required. It does however say they are allowed, based on approval, which, again, if you are just waking up from a long nap, is standard operating procedure for a HOA!
GenoS
(Florida)

Posts:3867


06/14/2020 4:49 PM  
Posted By MarkW18 on 06/14/2020 3:18 PM
Did you just wake up and now smelling the coffee? No one is saying ARC approval is not required. It does however say they are allowed, based on approval, which, again, if you are just waking up from a long nap, is standard operating procedure for a HOA!

I think you're the one that needs to lay off the ambien.
MarkW18


Posts:1195


06/14/2020 8:31 PM  
Posted By GenoS on 06/14/2020 4:49 PM
Posted By MarkW18 on 06/14/2020 3:18 PM
Did you just wake up and now smelling the coffee? No one is saying ARC approval is not required. It does however say they are allowed, based on approval, which, again, if you are just waking up from a long nap, is standard operating procedure for a HOA!

I think you're the one that needs to lay off the ambien.



Nah, I'm good
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Forums > Homeowner Association > HOA Discussions > Putting in a Pool - HOA problems



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