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Subject: HOA selectively applying rules? ignoring other rules and other home owners?
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Author Messages
AdamL1
(Idaho)

Posts:21


07/06/2021 12:02 PM  
Wondering what to do about this. I've read through the CCR's extensively and have a good sense of the rules, however I look around and see many many homes 'violating' the rules. I'm not saying I agree with the rules, I'm just saying according the the 'letter of the law', the rules are clear. So now what to do if the HOA decides to send me a Notice of Violation for one of these rules, yet have let it slide for years on other homes? I know "but someone else did it too" is not a legal defense, but how does this issue get addressed with respect to HOA's?
BarbaraT1
(Texas)

Posts:500


07/06/2021 12:40 PM  
Posted By AdamL1 on 07/06/2021 12:02 PM
Wondering what to do about this. I've read through the CCR's extensively and have a good sense of the rules, however I look around and see many many homes 'violating' the rules. I'm not saying I agree with the rules, I'm just saying according the the 'letter of the law', the rules are clear. So now what to do if the HOA decides to send me a Notice of Violation for one of these rules, yet have let it slide for years on other homes? I know "but someone else did it too" is not a legal defense, but how does this issue get addressed with respect to HOA's?





How do you know those other owners never received any violations?
MarkM19
(Texas)

Posts:825


07/06/2021 1:20 PM  
Adam,
Seems like you may feel like Selective enforcement may be going on. As a board member I can tell you this could be happening but probably not. Many times the owners are receiving the same letters as you and the process takes a while. Owners get 3 warnings typically and then the fines start. They also start low and build over time. Some owners ignore this and it can take a year or more to get resolved. If it goes the legal route even longer. The PMC can not discuss any of this with another owner. The board can't either. It is frustrating but you need to only worry about your violations.
AugustinD


Posts:961


07/06/2021 2:36 PM  
Posted By AdamL1 on 07/06/2021 12:02 PM
I know "but someone else did it too" is not a legal defense
"Someone else did it too" may very well be a successful legal defense. But it depends on a lot of things.

Hypotheticals waste this forum's veteran members time and expertise. You ought to give details of what is going on.

Granted I am highly likely to send you to an attorney again. Because there's a reason attorneys spend three years in law school; pass a difficult exam; and often are still not useful until they have worked under an experienced attorney for a few years.
CathyA3
(Ohio)

Posts:2154


07/06/2021 2:38 PM  
It can be frustrating for homeowners because, from the outside, a violation that is being ignored by the board looks exactly like one that is being addressed but the owner is not complying.

Just understand that you don't know what's going on. You may be able to guess at it if the HOA has placed a lien on the property (this should be public info). However, a lien will only tell you that the homeowner owes the association money - you won't know whether it's for past due assessments, fines, or some combination. Your particular state may have rules regulating fines and liens, and your governing documents would have to allow the board to do this.

TL;DR: it's complicated and not obvious.
KerryL1
(California)

Posts:8290


07/06/2021 6:32 PM  
Since you're new, Adam, how do you know others have been in violation for years? If it's because whatever is against the rules now, may not have been "back then" whenever "back then" was.
JohnT38
(South Carolina)

Posts:646


07/07/2021 3:15 AM  
Posted By AdamL1 on 07/06/2021 12:02 PM
Wondering what to do about this. I've read through the CCR's extensively and have a good sense of the rules, however I look around and see many many homes 'violating' the rules. I'm not saying I agree with the rules, I'm just saying according the the 'letter of the law', the rules are clear. So now what to do if the HOA decides to send me a Notice of Violation for one of these rules, yet have let it slide for years on other homes? I know "but someone else did it too" is not a legal defense, but how does this issue get addressed with respect to HOA's?




Adam, as a board member, I do not go out and actively look for violations and I don't believe it's part of my duties. Violations are reported two different ways. The first is the property manager does a monthly drive by and records them. The second way is when a homeowner calls the property manager and reports a violation. It is then up to the board to enforce the rules consistently for all owners. In some cases we have eliminated a rule when we felt that it was unenforceable or not what the majority of owners wanted.

If you see that a rule is not being followed it is up to you to report it and as long as the board enforces it, they have done their job.
JaneL2
(Texas)

Posts:76


07/12/2021 3:40 PM  
HOAs cannot not selectively reinforce rules at one home and not another and the way that you would know if they were also making the others abide by the rules is if you cannot find any violations at the other peoples property. Sue the HOA for selectively enforcing the rules
JohnC46
(South Carolina)

Posts:11180


07/13/2021 7:15 AM  
Posted By KerryL1 on 07/06/2021 6:32 PM
Since you're new, Adam, how do you know others have been in violation for years? If it's because whatever is against the rules now, may not have been "back then" whenever "back then" was.



Good point. Also in the Declarant stage, it was not uncommon for the Declarant to allow deviations to aid sales.
KerryL1
(California)

Posts:8290


07/13/2021 5:33 PM  
Good point, JohnC. There could also be grandfather clauses whereby the violations were OK "back then," rules changed, but they were allowed to keep "it" but not replace it.
MaxB4
(Maine)

Posts:701


07/13/2021 7:08 PM  
Posted By JohnT38 on 07/07/2021 3:15 AM
Posted By AdamL1 on 07/06/2021 12:02 PM
Wondering what to do about this. I've read through the CCR's extensively and have a good sense of the rules, however I look around and see many many homes 'violating' the rules. I'm not saying I agree with the rules, I'm just saying according the the 'letter of the law', the rules are clear. So now what to do if the HOA decides to send me a Notice of Violation for one of these rules, yet have let it slide for years on other homes? I know "but someone else did it too" is not a legal defense, but how does this issue get addressed with respect to HOA's?




Adam, as a board member, I do not go out and actively look for violations and I don't believe it's part of my duties. Violations are reported two different ways. The first is the property manager does a monthly drive by and records them. The second way is when a homeowner calls the property manager and reports a violation. It is then up to the board to enforce the rules consistently for all owners. In some cases we have eliminated a rule when we felt that it was unenforceable or not what the majority of owners wanted.

If you see that a rule is not being followed it is up to you to report it and as long as the board enforces it, they have done their job.



I am curious, if the rule you didn't enforce was in the CCRs, would you eliminate it?
KerryL1
(California)

Posts:8290


07/13/2021 7:24 PM  
JohnT said "rule," and CC&Rs don't contain rules, they contain covenants, conditions & restrictions. CC&Rs often give associations, via their boards, the power to make rules about certain things. Usually, but not always, the rules will be about the common areas.

I bring this up because posters often get rules and CC&Rs confused; I don't think JohnT is one of them.

But it looks like Adam has rules & CC&Rs mixed up. Can you, Adam, give an example of something in the CC&Rs that's being violated that you see? Can you give us an example of a rule that's being broken?

CC&Rs can be amended only by owners' votes and often a supermajority is required. Rules can be made, modified and eliminated usually by boards of directors.
MaxB4
(Maine)

Posts:701


07/13/2021 7:43 PM  
Posted By KerryL1 on 07/13/2021 7:24 PM
JohnT said "rule," and CC&Rs don't contain rules, they contain covenants, conditions & restrictions. CC&Rs often give associations, via their boards, the power to make rules about certain things. Usually, but not always, the rules will be about the common areas.

I bring this up because posters often get rules and CC&Rs confused; I don't think JohnT is one of them.

But it looks like Adam has rules & CC&Rs mixed up. Can you, Adam, give an example of something in the CC&Rs that's being violated that you see? Can you give us an example of a rule that's being broken?

CC&Rs can be amended only by owners' votes and often a supermajority is required. Rules can be made, modified and eliminated usually by boards of directors.



That is incorrect. Many of the rules that are part of the Rules and Regulations come directly, word for word, from the CCRs. What the CCRs will give the Association, through its Board the power to create rules.

As a manager, I have created many Rules and Regulations where an Association doesn't have any, either never were created or lost over the years. First thing I do is go to the CCRs and pull all the restrictions that are listed in the various sections such as Use Restriction, Maintenance obligations, can you park a truck on your lot, can you have a RV on your lot. These are generally what is in the CCRS. Once I have done the list, I turn them over to the Board or Committee to finalize.

One area not addressed in CCRs from my experience is pool rules or maybe gym rules, which the Association will add onto.
JohnT38
(South Carolina)

Posts:646


07/14/2021 4:33 AM  
Posted By KerryL1 on 07/13/2021 7:24 PM
JohnT said "rule," and CC&Rs don't contain rules, they contain covenants, conditions & restrictions. CC&Rs often give associations, via their boards, the power to make rules about certain things. Usually, but not always, the rules will be about the common areas.

I bring this up because posters often get rules and CC&Rs confused; I don't think JohnT is one of them.

But it looks like Adam has rules & CC&Rs mixed up. Can you, Adam, give an example of something in the CC&Rs that's being violated that you see? Can you give us an example of a rule that's being broken?

CC&Rs can be amended only by owners' votes and often a supermajority is required. Rules can be made, modified and eliminated usually by boards of directors.




I can assure you this isn't the case and I'm not clear on what I said that made you think this.
MarshallT
(New York)

Posts:158


07/14/2021 5:52 AM  
Hi Adam,

It is possible that the board has missed some violations, but it could also be that those homeowners did receive notices and are ignoring them.

Newer board members may also take these issues more seriously than a previous group. There are a lot of hypotheticals here, so the best thing you can do is handle your own issues. You can also submit a formal complaint about another owner to the board if you see they are breaking rules.
MarshallT
(New York)

Posts:158


07/14/2021 5:52 AM  
Hi Adam,

It is possible that the board has missed some violations, but it could also be that those homeowners did receive notices and are ignoring them.

Newer board members may also take these issues more seriously than a previous group. There are a lot of hypotheticals here, so the best thing you can do is handle your own issues. You can also submit a formal complaint about another owner to the board if you see they are breaking rules.
AdamL1
(Idaho)

Posts:21


07/14/2021 9:00 AM  
Posted By KerryL1 on 07/13/2021 7:24 PM
JohnT said "rule," and CC&Rs don't contain rules, they contain covenants, conditions & restrictions. CC&Rs often give associations, via their boards, the power to make rules about certain things. Usually, but not always, the rules will be about the common areas.

I bring this up because posters often get rules and CC&Rs confused; I don't think JohnT is one of them.

But it looks like Adam has rules & CC&Rs mixed up. Can you, Adam, give an example of something in the CC&Rs that's being violated that you see? Can you give us an example of a rule that's being broken?

CC&Rs can be amended only by owners' votes and often a supermajority is required. Rules can be made, modified and eliminated usually by boards of directors.




Yes, several.
CCR's state things like:
- only 2 dogs allowed --> many homes have 3 dogs.
- No basketball hoops --> many homes have hoops, both temp and permanent.
- no on-street parking --> many homes park on street consistently
- no playscapes --> many homes have playscapes
- no boats/rvs --> many homes have boats/rv's parked.

I generally don't care about these, I'm more concerned that the HOA has sent me a letter regarding the CCR's and rules, yet let many many many others slide.
AdamL1
(Idaho)

Posts:21


07/14/2021 9:00 AM  
Posted By KerryL1 on 07/13/2021 7:24 PM
JohnT said "rule," and CC&Rs don't contain rules, they contain covenants, conditions & restrictions. CC&Rs often give associations, via their boards, the power to make rules about certain things. Usually, but not always, the rules will be about the common areas.

I bring this up because posters often get rules and CC&Rs confused; I don't think JohnT is one of them.

But it looks like Adam has rules & CC&Rs mixed up. Can you, Adam, give an example of something in the CC&Rs that's being violated that you see? Can you give us an example of a rule that's being broken?

CC&Rs can be amended only by owners' votes and often a supermajority is required. Rules can be made, modified and eliminated usually by boards of directors.




Yes, several.
CCR's state things like:
- only 2 dogs allowed --> many homes have 3 dogs.
- No basketball hoops --> many homes have hoops, both temp and permanent.
- no on-street parking --> many homes park on street consistently
- no playscapes --> many homes have playscapes
- no boats/rvs --> many homes have boats/rv's parked.

I generally don't care about these, I'm more concerned that the HOA has sent me a letter regarding the CCR's and rules, yet let many many many others slide.
KerryL1
(California)

Posts:8290


07/14/2021 9:14 AM  
Good examples of items in your CC&Rs that you see are being violated, Adam. With so many violations in your HOA, do you have any idea why the assn. is citing you? What rule or CC&R are you violating?

Sorry, JohnT, I can't see where what I wrote complimenting you bothered you. To be l clearer (I hope!) I think you know the difference between a rule in an HOA's rules & refgs, and aa restriction in the CC&Rs.

Yes, Max, I'm sure some CC&Rs's restrictions are stated again in an assn's rules & regs. In those cases, the matter would be both a CC&R section AND a rule. A board alone wouldn't be able to eliminate this rule is it's also a CC&R, which would require an owner vote.
JohnT38
(South Carolina)

Posts:646


07/14/2021 9:18 AM  
Posted By KerryL1 on 07/14/2021 9:14 AM
Good examples of items in your CC&Rs that you see are being violated, Adam. With so many violations in your HOA, do you have any idea why the assn. is citing you? What rule or CC&R are you violating?

Sorry, JohnT, I can't see where what I wrote complimenting you bothered you. To be l clearer (I hope!) I think you know the difference between a rule in an HOA's rules & refgs, and aa restriction in the CC&Rs.

Yes, Max, I'm sure some CC&Rs's restrictions are stated again in an assn's rules & regs. In those cases, the matter would be both a CC&R section AND a rule. A board alone wouldn't be able to eliminate this rule is it's also a CC&R, which would require an owner vote.




Goodness, I apologize! I totally misread what you said. In all fairness I only had the first cup of coffee in me when I read your post. I need 3 to be coherent and digest what I'm reading. Sorry Kerry!
CarissaM
(Florida)

Posts:26


07/14/2021 10:28 AM  
Adam are you being vio'd for any of those items you mentioned?

I'm the secretary of a neighborhood HOA with 41 lots in FL and our CCR's state that boats/RV's are not to be visible from behind a fence. Historically the board chooses not to enforce that particular item across the neighborhood. We can't get the number of votes to change the CCR's because of lack of response from the community. We need 28 votes and usually get about 6.

No homeowner has come forward to report a boat or RV in violation of being visible behind a fence. We are operating as "we will not enforce this rule until a homeowner challenges the board" and then maybe we can get the boat/RV owners to band together and actually participate...alas, I digress...my question is, is choosing not to enforce one rule across the board considered "selective enforcement" or is "selective enforcement" really based on enforcing one rule against one homeowner and not another?

We do have it in the CCR's that the board can enforce in whole or in part the declarations so we felt like as long as we are uniform in the decision, we are ok. But are we??

Thanks in advance for your thoughts/replies!
AugustinD


Posts:961


07/14/2021 10:45 AM  
CarissaM, welcome to the forum. I think your questions are good ones. Please consider starting a new thread, so that this thread may attempt to remain focused on AdamL1's concerns.

Posted By CarissaM on 07/14/2021 10:28 AM
my question is, is choosing not to enforce one rule across the board considered "selective enforcement"
The above is not "selective enforcement" in the sense that the courts mean.

or is "selective enforcement" really based on enforcing one rule against one homeowner and not another?
Correct, Selective enforcement is enforcing a rule or covenant against one owner and not another.

Many web sites discuss this. Once in awhile I see one that gets it wrong.


We do have it in the CCR's that the board can enforce in whole or in part the declarations so we felt like as long as we are uniform in the decision, we are ok. But are we??
Lots of declarations have this provision stating the board does not have enforce anything it does not want to enforce. But I believe this has come up in appeals courts. I believe the courts generally lean in the direction of expecting HOAs to enforce covenants when an owner asks the HOA/COA to do so and otherwise, when the HOA/COA deems it appropriate.

If one particular covenant is not enforced for a long enough time, and it is obvious this is so from, say, driving around the HOA grounds, then a court may very well rule the one particular covenant is abandoned and not enforceable. This may be the case in the situation you describe.

Some states have HOA/COA laws that require the boards to enforce. In Florida, I feel the HOA/COA laws lean in this direction.
AdamL1
(Idaho)

Posts:21


07/14/2021 10:47 AM  
I am (kinda) getting targeted for one CCR violation and then getting several other violations after drawing the ire of the board....and that's a big question mark as to whether its a CCR violation in the first place. I think my main question was about the general concept of a HOA Board selectively targeting an individual that is pushing back against them.

long story short, I have 2 beehives in my backyard. The HOA Karen sent me a cease and desist, claiming it was a nuisance and a threat to the safety of some unspecified person that might be allergic. CCR's define nuisance as noise, smell, or sight. Bees clearly do not fall into this category and also the City Code explicitly defines how to legally do beekeeping at a house. The city code officer states that there cannot be a nuisance if the beekeeper is following city code. Anyway, I pushed back on the HOA about this and now they are citing me for a basketball hoop, a child swing, landscaping, etc.....despite all of these issues happening all throughout the neighborhood.
MaxB4
(Maine)

Posts:701


07/14/2021 10:48 AM  
Posted By CarissaM on 07/14/2021 10:28 AM
Adam are you being vio'd for any of those items you mentioned?

I'm the secretary of a neighborhood HOA with 41 lots in FL and our CCR's state that boats/RV's are not to be visible from behind a fence. Historically the board chooses not to enforce that particular item across the neighborhood. We can't get the number of votes to change the CCR's because of lack of response from the community. We need 28 votes and usually get about 6.

No homeowner has come forward to report a boat or RV in violation of being visible behind a fence. We are operating as "we will not enforce this rule until a homeowner challenges the board" and then maybe we can get the boat/RV owners to band together and actually participate...alas, I digress...my question is, is choosing not to enforce one rule across the board considered "selective enforcement" or is "selective enforcement" really based on enforcing one rule against one homeowner and not another?

We do have it in the CCR's that the board can enforce in whole or in part the declarations so we felt like as long as we are uniform in the decision, we are ok. But are we??

Thanks in advance for your thoughts/replies!



In my opinion, "selective enforcement" of the CCRs in general and "selective enforcement" of one restriction being the same.
AugustinD


Posts:961


07/14/2021 10:59 AM  
Posted By AdamL1 on 07/14/2021 10:47 AM
The HOA Karen sent me a cease and desist, claiming it was a nuisance and a threat to the safety of some unspecified person that might be allergic. CCR's define nuisance as noise, smell, or sight. Bees clearly do not fall into this category and also the City Code explicitly defines how to legally do beekeeping at a house. The city code officer states that there cannot be a nuisance if the beekeeper is following city code. Anyway, I pushed back on the HOA about this and now they are citing me for a basketball hoop, a child swing, landscaping, etc.....despite all of these issues happening all throughout the neighborhood.
-- When it comes to "nuisance," CCRs that are more restrictive than city code, or are interpreted to be more restrictive than city code, will trump city code. On the other hand, the city code officer may or may not be right. Some states and cities do have code on bees that might trump the CC&Rs.

-- "Nuisance" is a legal term of art. There is no rigid definition in the courts.

-- Please quote here verbatim all of your CC&Rs that talk about "nuisance."

-- When you insist that bees "clearly do not fall into this category," it makes me wonder whether you are the "HOA Karen" here. These subjects are often not black and white. Your certainty that the bee situation is black and white causes me to wonder whether you are being fair to the HOA.

-- I think you need an attorney so you can get some wisdom.
AdamL1
(Idaho)

Posts:21


07/14/2021 11:10 AM  

no animals may be kept unless they do not cause a nuisance.
Nuisance defined as trash, odors, unsightly, noise, and even references City Code to define nuisance as well.
----------------------------
Animals/Pets. No animals, birds, insects, pigeons, poultry or livestock
shall be kept on the Property unless the presence of such creatures does not
constitute a nuisance.

Nuisances. No rubbish or debris of any kind shall be placed or
permitted to accumulate anywhere upon the Property, including Common Area or
vacant Building Lots, and no odor shall be permitted to arise therefrom so as to
render the Property or any portion thereof unsanitary, unsightly, offensive or
detrimental to the Property or to its occupants, or to any other property in the
vicinity thereof or to its occupant^. No noise or other nuisance, as described in Title
8, Chapter 8 of the Boise City Code, as amended from time to time, shall be
permitted to exist or operate upon any portion of the Property so as to be offensive
or detrimental to the Property or to its occupants or to other property in the vicinity
or to its occupants. Without limiting the generality of any of the foregoing provisions,
no exterior speakers, horns, whistles, bells or other sound devices (other than security
devices used exclusively for security purposes which have been approved by the
Master Association), flashing lights or search lights, shall be located, used or placed
on the Property without the prior written approval of the Master Association.

-------------
regarding city code, the city actively encourages and promotes residential beekeeping and has established a set of codes to ensure responsible keeping. The City Code officer stated that if someone complains, they come out to investigate the nuisance complaint and ensure everything is up to cod. If there is no code violation, then there is nothing illegal and no nuisance.
MaxB4
(Maine)

Posts:701


07/14/2021 11:18 AM  
Posted By AdamL1 on 07/14/2021 11:10 AM

no animals may be kept unless they do not cause a nuisance.
Nuisance defined as trash, odors, unsightly, noise, and even references City Code to define nuisance as well.
----------------------------
Animals/Pets. No animals, birds, insects, pigeons, poultry or livestock
shall be kept on the Property unless the presence of such creatures does not
constitute a nuisance.

Nuisances. No rubbish or debris of any kind shall be placed or
permitted to accumulate anywhere upon the Property, including Common Area or
vacant Building Lots, and no odor shall be permitted to arise therefrom so as to
render the Property or any portion thereof unsanitary, unsightly, offensive or
detrimental to the Property or to its occupants, or to any other property in the
vicinity thereof or to its occupant^. No noise or other nuisance, as described in Title
8, Chapter 8 of the Boise City Code, as amended from time to time, shall be
permitted to exist or operate upon any portion of the Property so as to be offensive
or detrimental to the Property or to its occupants or to other property in the vicinity
or to its occupants. Without limiting the generality of any of the foregoing provisions,
no exterior speakers, horns, whistles, bells or other sound devices (other than security
devices used exclusively for security purposes which have been approved by the
Master Association), flashing lights or search lights, shall be located, used or placed
on the Property without the prior written approval of the Master Association.

-------------
regarding city code, the city actively encourages and promotes residential beekeeping and has established a set of codes to ensure responsible keeping. The City Code officer stated that if someone complains, they come out to investigate the nuisance complaint and ensure everything is up to cod. If there is no code violation, then there is nothing illegal and no nuisance.



Works for me!
AdamL1
(Idaho)

Posts:21


07/14/2021 11:21 AM  
Posted By AugustinD on 07/14/2021 10:59 AM
-- "Nuisance" is a legal term of art. There is no rigid definition in the courts.




https://legislature.idaho.gov/statutesrules/idstat/title52/t52ch1/sect52-111/#:~:text=Idaho%20Statutes&text=Actions%20for%20nuisance.,the%20subject%20of%20an%20action.
52-111. ACTIONS FOR NUISANCE. Anything which is injurious to health or morals, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance and the subject of an action.


just sayin'.....the issue of beekeeping has been challenged time and again...there's plenty of case law and precedence. The HOA doesn't have much leg to stand on...
AugustinD


Posts:961


07/14/2021 11:48 AM  
The Boise City Code appears to have changed a bit. Now it's Title 4, Chapter 1 that defines nuisance, as follows:

4-1-1: NUISANCE DEFINED:
For the purpose of this chapter, the term "nuisance" is defined to mean any condition or use of property which is detrimental to the health or safety of persons or the property of others, or which is declared to be a nuisance by this chapter, or by any other State or Federal law. Nuisances shall specifically include, but are not limited to, the following:
[and so on]

See https://codelibrary.amlegal.com/codes/boiseid/latest/boise_id/0-0-0-4505#JD_4-1-1

I am not aware of the case law being generally supportive of beekeeping. Nor do I see general support for beekeeping in the scientific community.

I do see Idaho has a lot of state regulation of beekeeping.

I advise: Go see an attorney. Try hard to give the attorney all the facts, without bias from you, and so not just the facts that favor you. Else you will be paying the attorney more money than you have to.

CarissaM
(Florida)

Posts:26


07/14/2021 12:00 PM  
AugustinD thank you for your response and noted for future posts to keep things focused.

MaxB4
(Maine)

Posts:701


07/14/2021 12:04 PM  
Adam;

I know you already know this, but for the rest of the folks in the cheap seats, here is the entire part of Section 4.1.1 of the Boise City Code as it relates to, pause, HEALTH AND SANITATION. Title 4 covers Healthy and Sanitation. Outside of animal feces, anyone see anything regarding bees or animals in general. It also says for the purpose of this chapter.

4-1-1: NUISANCE DEFINED:
For the purpose of this chapter, the term "nuisance" is defined to mean any condition or use of property which is detrimental to the health or safety of persons or the property of others, or which is declared to be a nuisance by this chapter, or by any other State or Federal law. Nuisances shall specifically include, but are not limited to, the following:
A. Maintaining upon property junk, trash, garbage, refuse or other similar matter as defined by this chapter;
B. Keeping unsanitary matter on premises. It shall be unlawful for any person to keep, or permit another to keep, upon any premises deleterious or septic material, including, but not limited to, animal feces, unless such material is retained in containers or vessels which deny access to humans, flies, insects, rodents or other animals;
C. Permitting any premises to become unsanitary or a fire menace by allowing any unsafe matter to grow, accumulate or otherwise occupy and remain on such premises;
D. Permitting pools of water to accumulate and remain upon any premises, thereby becoming stagnant and foul;
E. Any other use of property which is specifically declared by resolution of the Council to be a nuisance, after compliance with the notice and hearing requirements of this chapter. (1952 Code § 8-08-01)

Maybe Augie is an attorney in hiding, because he sure likes to twist the facts to benefit his narrative
MaxB4
(Maine)

Posts:701


07/14/2021 12:05 PM  
Posted By CarissaM on 07/14/2021 12:00 PM
AugustinD thank you for your response and noted for future posts to keep things focused.




Looks like Augie created a support member. Thinks of everything.
MaxB4
(Maine)

Posts:701


07/14/2021 12:09 PM  
https://www.beardstclair.com/bee-aware-of-the-law/
JohnT38
(South Carolina)

Posts:646


07/14/2021 12:11 PM  
Posted By MaxB4 on 07/14/2021 12:05 PM
Posted By CarissaM on 07/14/2021 12:00 PM
AugustinD thank you for your response and noted for future posts to keep things focused.




Looks like Augie created a support member. Thinks of everything.





https://healthpsychologyconsultancy.wordpress.com/2013/08/21/the-argumentative-personality/

CarissaM
(Florida)

Posts:26


07/14/2021 12:13 PM  
Anyway, I pushed back on the HOA about this and now they are citing me for a basketball hoop, a child swing, landscaping, etc.....despite all of these issues happening all throughout the neighborhood.




When you pushed back, did you get a response on the bees?

CarissaM
(Florida)

Posts:26


07/14/2021 12:17 PM  
Hi, I'm new, I'm not created by another individual and I don't know your history with this individual or if you're being facetious but I'm a real person folks. I'm just trying to keep the peace in my own neighborhood. And thank you for your interpretation of selective enforcement.
MaxB4
(Maine)

Posts:701


07/14/2021 12:34 PM  
Posted By CarissaM on 07/14/2021 12:13 PM
Anyway, I pushed back on the HOA about this and now they are citing me for a basketball hoop, a child swing, landscaping, etc.....despite all of these issues happening all throughout the neighborhood.




When you pushed back, did you get a response on the bees?




Not many people know how to include a quote and leave off the header. If you look at Augie's response at 6:44PM, it is used multiple times.
AdamL1
(Idaho)

Posts:21


07/14/2021 12:51 PM  
Posted By CarissaM on 07/14/2021 12:13 PM
Anyway, I pushed back on the HOA about this and now they are citing me for a basketball hoop, a child swing, landscaping, etc.....despite all of these issues happening all throughout the neighborhood.




When you pushed back, did you get a response on the bees?





yes. They responded saying remove them or they will pay a contractor to remove them for me and send me the bill. I actually identified the contractor they called and then talked to him, who told me the HOA Karen said 1. if they had just asked, I would have allowed it, but because they didn't ask, I am going to make sure they remove it. and 2. go into their yard and remove them, I don't care if it is trespassing.

Rightfully, the contractor told the HOA Karen (in a nice way) how crazy she was and declined the job. I have since been waiting patiently for the next round of HOA letters.
MaxB4
(Maine)

Posts:701


07/14/2021 12:51 PM  
A question for you all:

Your CCRs have say 100 different Use Restrictions, listed under one specific in your CCRs. In your Rules and Regulations Handbook, only 50 of those restrictions got carried over from your CCRs. As a property manager hired by your HOA, which rules do we enforce?
CarissaM
(Florida)

Posts:26


07/14/2021 12:57 PM  



Not many people know how to include a quote and leave off the header. If you look at Augie's response at 6:44PM, it is used multiple times.





(Hopefully I did it again and it would certainly be helpful if a preview of a post could be provided so I don't mess up my attempts at highlighting prior quotes to respond) I really got lucky there that memory served me well for that highlight, I have a tiny bit of knowledge in reading/editing HTML and I hadn't posted that response before your accusation that I was a pseudo-poster. BUT I get it, I did post on a stepfamily forum for a few years and had that sort of issue crop up a time or two. I'm not in the market to prove I am who I am anymore than I hope you're not in the market to prove I'm some other poster.

I hope to find this forum a helpful resource and that as I continue to post you will realize your error.



CarissaM
(Florida)

Posts:26


07/14/2021 1:06 PM  
Posted By MaxB4 on 07/14/2021 12:51 PM
A question for you all:

Your CCRs have say 100 different Use Restrictions, listed under one specific in your CCRs. In your Rules and Regulations Handbook, only 50 of those restrictions got carried over from your CCRs. As a property manager hired by your HOA, which rules do we enforce?





I don't have enough knowledge on the topic to provide what I feel is an educated response but I think we are supposed to follow them all right, even if they don't carry over to the R&R...and that the Board rules over the R&R but can't change the CCR's without votes? I would like to read response from more experienced vets.

I feel like, and only based on my experience in the current home, a board can cherry pick the rules they follow and it's hard to prove when one is selectively enforcing over another but if Adam says he got a basketball hoop vio and there are a dozen hoops in the neighborhood, that feels very selective.

MaxB4
(Maine)

Posts:701


07/14/2021 1:07 PM  
Thank you Augie! Much apprieciated.
CarissaM
(Florida)

Posts:26


07/14/2021 1:17 PM  


yes. They responded saying remove them or they will pay a contractor to remove them for me and send me the bill. I actually identified the contractor they called and then talked to him, who told me the HOA Karen said 1. if they had just asked, I would have allowed it, but because they didn't ask, I am going to make sure they remove it. and 2. go into their yard and remove them, I don't care if it is trespassing.

Rightfully, the contractor told the HOA Karen (in a nice way) how crazy she was and declined the job. I have since been waiting patiently for the next round of HOA letters.





Sometimes we start on the wrong foot with an HOA or a board member and it's really hard to come back from that. If you plan to live in this neighborhood long term, I encourage you to try to find a way to live harmoniously with them. A first step wrong can start years of battles and who has energy for that (not this gal)? However, I think in light of your additional information from the contractor you should really consult an attorney and perhaps even pay for a letter from them to your HOA outlining his stance on the bees and the onslaught of violations that seem to be selectively aimed at you. You may find that the legal paper stands better than your response.

We have only vio'd a time or two and I don't know from experience if you're within your rights to request that information on other homes.
CathyA3
(Ohio)

Posts:2154


07/14/2021 1:17 PM  
Posted By MaxB4 on 07/14/2021 12:51 PM
A question for you all:

Your CCRs have say 100 different Use Restrictions, listed under one specific in your CCRs. In your Rules and Regulations Handbook, only 50 of those restrictions got carried over from your CCRs. As a property manager hired by your HOA, which rules do we enforce?



The CC&Rs.

There is a hierarchy of laws governing community associations:

Federal law supersedes state law which supersedes local municipality laws which supersedes CC&Rs which supersede community rules and regulations.

If two things contradict each other, the one that's higher in the hierarchy takes precedence. It's why HOAs/COAs must allow satellite dishes and various flags (US, service, etc). The association can make reasonable rules about numbers, sizes and screening, but they cannot prohibit these things regardless of what the CC&Rs say.
AugustinD


Posts:961


07/14/2021 1:29 PM  
Posted By MaxB4 on 07/14/2021 12:04 PM
the entire part of Section 4.1.1 of the Boise City Code as it relates to, pause, HEALTH AND SANITATION. Title 4 covers Healthy and Sanitation. Outside of animal feces, anyone see anything regarding bees or animals in general. It also says for the purpose of this chapter. [snippage]
MaxB4, AdamL1's covenants state that, "No noise or other nuisance, as described in Title 8, Chapter 8 [Now Title 4, Chapter 1, I believe] of the Boise City Code, as amended from time to time, shall be permitted to exist or operate upon any portion of the Property so as to be offensive or detrimental to the Property or to its occupants or to other property in the vicinity or to its occupants." Hence the definition in the Boise City Code is what the covenants say to use.
MaxB4
(Maine)

Posts:701


07/14/2021 1:34 PM  
I understand all the legalities of hierarchy and which document or statues has priority.

Lets said I just bought into a HOA and I read the governing docs, including the CCRs and Rules and Regulations. In the CCRs, for instance, it states no cloth lines, no basketball hoops and trash cans can't be visible from the street or common area, BUT in the 12 page Rules and Regulations there are no mention of cloth lines, basketball hoops, or trash cans. As a new owner, am I to interpret that the Association somehow did away with those rules.

Then as a property manager for the community I am tasked with enforcing the Rules and Regulation by the Board of Directors at a meeting. Am I to enforce just the 50 in the Rules or also the other 50 omitted from the CCRs?
MaxB4
(Maine)

Posts:701


07/14/2021 1:41 PM  
Posted By AugustinD on 07/14/2021 1:29 PM
Posted By MaxB4 on 07/14/2021 12:04 PM
the entire part of Section 4.1.1 of the Boise City Code as it relates to, pause, HEALTH AND SANITATION. Title 4 covers Healthy and Sanitation. Outside of animal feces, anyone see anything regarding bees or animals in general. It also says for the purpose of this chapter. [snippage]
MaxB4, AdamL1's covenants state that, "No noise or other nuisance, as described in Title 8, Chapter 8 [Now Title 4, Chapter 1, I believe] of the Boise City Code, as amended from time to time, shall be permitted to exist or operate upon any portion of the Property so as to be offensive or detrimental to the Property or to its occupants or to other property in the vicinity or to its occupants." Hence the definition in the Boise City Code is what the covenants say to use.



Let's say that Adam's wording from the CCRs came directly from what use to be in Title 8 and now is Title 4, then in the hierocracy of documents, the wording of the CCRs automatically changes. It is now Health and Sanitation and the State of Idaho loves bees. Case closed.
AugustinD


Posts:961


07/14/2021 1:43 PM  
Posted By MaxB4 on 07/14/2021 1:41 PM
Let's say that Adam's wording from the CCRs came directly from what use to be in Title 8 and now is Title 4, then in the hierocracy of documents, the wording of the CCRs automatically changes. It is now Health and Sanitation and the State of Idaho loves bees. Case closed.
I do not think so. But whatever. AdamL1 is up against a possibly abusive, rogue Board. My opinion remains he should go see an attorney.
AdamL1
(Idaho)

Posts:21


07/14/2021 1:48 PM  
is the hierarchy principle 100%? I've read many people say that CCR's can go beyond and contradict city/state code and statutes.
MaxB4
(Maine)

Posts:701


07/14/2021 1:49 PM  
This is what we were taught in HOA Law Seminars.
CarissaM
(Florida)

Posts:26


07/14/2021 1:55 PM  
MaxD, I know you posed the question but what is your response?

Second, can you quickly clarify that CCR's, Bylaws and Rules and Regulations are three separate terms? I have CCR's and Bylaws but no R&R and I'm not sure if any of these are interchangeable terms.

Nonetheless, as a new owner I would assume that I have to follow the CCR's and the Rules/Regs and that being omitted from one area didn't negate them from another. As a property manager I would defer to the CCR's and be enforcing 100. But my bylaws don't mention any of the items in the CCR's like fences, easements, boats, landscaping, etc. Those are only in the CCR's.

At the end of my bylaws it does say if there is a conflict between the CCR's and the Bylaws that the CCR's shall control so I guess the hierarchy is important.

CathyA3
(Ohio)

Posts:2154


07/14/2021 1:57 PM  
Posted By MaxB4 on 07/14/2021 1:34 PM
I understand all the legalities of hierarchy and which document or statues has priority.

Lets said I just bought into a HOA and I read the governing docs, including the CCRs and Rules and Regulations. In the CCRs, for instance, it states no cloth lines, no basketball hoops and trash cans can't be visible from the street or common area, BUT in the 12 page Rules and Regulations there are no mention of cloth lines, basketball hoops, or trash cans. As a new owner, am I to interpret that the Association somehow did away with those rules.

Then as a property manager for the community I am tasked with enforcing the Rules and Regulation by the Board of Directors at a meeting. Am I to enforce just the 50 in the Rules or also the other 50 omitted from the CCRs?



New owners should be careful when they interpret anything. :-)

You enforce what the CC&Rs say. The board can't just do away with inconvenient restrictions. They have to be legally amended and recorded if the community wants to live under different rules.

Many of the rules and regulations documents I've seen have a disclaimer that says if there is a contradiction between what's in the document and what's in the CC&Rs, then the CC&Rs prevail. Smart idea.

On the other hand, while the hierarchy of laws is clear in theory it can be confusing in practice, thanks to oddly worded CC&Rs and other things. It's the stuff lawsuits are made of.
AugustinD


Posts:961


07/14/2021 2:00 PM  
Posted By AdamL1 on 07/14/2021 1:48 PM
I've read many people say that CCR's can go beyond and contradict city/state code and statutes.
For the layperson, it depends on how a person defines and/or understands the meaning of "contradict." For example, and as is repeated here often, nationwide, many HOA's covenants are more limiting than what is in the municipal code (for the city where the HOA is located). All other things equal, the courts can and will enforce these more limiting covenants. Why? Because the courts say that a more limiting covenant (than a municipal ordinance) is not technically a conflict between the covenant and the municipal code.

The topic is related to my earlier posts, concerning what a nuisance is.
MaxB4
(Maine)

Posts:701


07/14/2021 2:04 PM  
This just came up in my city. An HOA's CCRs stated that RV's per City of XXXX Municipal Code, Chapter xx.xx.x can not be parked on any residential property. Two years ago, the City amended the City Code to include an exemption for disabled persons. Until the HOA amends their CCRs to exclude the reference top City Code, persons who can qualify under the exemption can park their RV under the City guidelines.

The HOA is still trying to get the amendment passed.
CarissaM
(Florida)

Posts:26


07/14/2021 2:07 PM  


You enforce what the CC&Rs say. The board can't just do away with inconvenient restrictions. They have to be legally amended and recorded if the community wants to live under different rules.





This is what brought me here, because we have lax enforcement of certain rules and while they are across the board and I'm wondering if it opens up liability for others to break the rules and fall back on, "well you're not enforcing CCR #27, why are you enforcing CCR #30?" Our board fired the management company in 2016 (before I purchased) and has self managed and done pretty well but this seems like cherry picking rules to follow and I don't see how that is going to fly when we piss off the wrong person (be it a homeowner or a board member).

Like Adam mentioned, they're not enforcing basketball hoops and playspaces, why should he follow nuisances/animals? I'm trying to proactively avoid this very response.
JohnC46
(South Carolina)

Posts:11180


07/14/2021 2:13 PM  
Posted By CarissaM on 07/14/2021 1:55 PM
MaxD, I know you posed the question but what is your response?

Second, can you quickly clarify that CCR's, Bylaws and Rules and Regulations are three separate terms? I have CCR's and Bylaws but no R&R and I'm not sure if any of these are interchangeable terms.

Nonetheless, as a new owner I would assume that I have to follow the CCR's and the Rules/Regs and that being omitted from one area didn't negate them from another. As a property manager I would defer to the CCR's and be enforcing 100. But my bylaws don't mention any of the items in the CCR's like fences, easements, boats, landscaping, etc. Those are only in the CCR's.

At the end of my bylaws it does say if there is a conflict between the CCR's and the Bylaws that the CCR's shall control so I guess the hierarchy is important.




Typically Covenants cover what can and cannot be done. Typically Covenants require 2/3rds of all owners agreeing to a change.

Typically Bylaws control elections, officers, BOD terms, operation of the association, etc. They do not control what can and cannot be done as do Covenants. Typically Bylaws can be changed by a simple majority of all owners agreeing to the change.

Typically Rules & Regulations clarify issues. R&R's cannot override Covenants nor Bylaws. Typically the BOD alone can make and/or change R&R's. A new BOD can override/change a prior BOD's R&R's. Many associations get in trouble with R&R's as they do try and override Covenants/Bylaws with R&R's ala rental controls.

As I repeated, typically. YMMV.

AugustinD


Posts:961


07/14/2021 2:19 PM  
Posted By CarissaM on 07/14/2021 2:07 PM

Like Adam mentioned, they're not enforcing basketball hoops and playspaces,
AdamL1 noted that playstations are being tolerated, while his lot's children's swing and basketball hoop are being cited for a violations. First, I agree this may very well be selective enforcement, where a court would tell the HOA to stuff it. Second, if the HOA is limiting kids' play equipment, there is a good possibility that the HOA is violating the Fair Housing Act's prohibition on discrimination on the basis of familial status.

AdamL1's thread here raises a number of issues. On some, I think the law is on his side. On others, I am not sure. I think it's not black and white. It's dishonest to treat it as black and white. The more grey the situation is, the more the attorney's fees are going to be for both sides, and the more likely it is that both sides would lose (money-wise) in court. Prevailing parties most certainly do not always get their attorney's fees back. I'd guess that more often than not, both sides pay their own, respective huge attorney fees. One side may nominally win. But the truth is, often the only winner is the attorneys for both sides.

why should he follow nuisances/animals? I'm trying to proactively avoid this very response.
I maintain that AdamL1 should comply with the covenants that are being enforced uniformly. For the ones that are not being enforced uniformly, he may have a case. For the covenants being enforced against him, and that others are not violating, more information is needed.
CarissaM
(Florida)

Posts:26


07/14/2021 2:22 PM  
JohnC, thank you this makes sense and is probably why we don't have any R&R.
CathyA3
(Ohio)

Posts:2154


07/14/2021 2:25 PM  
Posted By AdamL1 on 07/14/2021 1:48 PM
is the hierarchy principle 100%? I've read many people say that CCR's can go beyond and contradict city/state code and statutes.



CC&Rs can be more restrictive. A common example is an HOA that forbids on-street parking while the surrounding city allows it. But an HOA can't, for instance, have rules allowing certain actions that are illegal in the surrounding community.

But you really need to read the actual language of the relevant laws and CC&Rs. They can be poorly worded or unclear, and may even need a judge to interpret what is actually being said. Rules of thumb for that: 1. judges tend to throw out HOA rules that are unreasonable; 2. judges tend to rule in favor of a homeowner's right to the free use of his property; 3. court cases are crap shoots, and "slam dunk" cases can go down in flames depending on the parties involved.
KerryL1
(California)

Posts:8290


07/14/2021 2:29 PM  
Welcome, Carissa. You're doing a fine job of posting here. We must sometimes ignore Max. It looks like he thought you are Augustin with a new nom de plume. Not sure. Looks like he "got over it," though.

I agree with you and others who say that if it's in the CC&Rs, it's enforceable. Have no idea why a property mgr. like Max would ask this question. More, why in the world should every restriction in the CC&Rs be replicated in the Rules & Regs? And, yes, Bylaws are a different governing document that generally are about how the HOA is structured with respects to elections, board meetings and meetings of the members( owners), officers' duties. I think most HOAs have some sort of Rules & Regs document, but maybe not. They usually flesh out some of the more general statements in the CC&Rs. We do have R&R and it is one of our governing documents.

So, yes, the CC&Rs, Bylaws and Rules and Regs are generally separate governing documents. I say "generally," because we have seen a few cases here where the Bylaws seem to attached or appended to the CC&Rs.
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