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Subject: Hot tub request denied
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Author Messages
JayN2
(Florida)

Posts:7


07/12/2021 6:55 AM  
I live in a community in Apopka Florida. Its less than 10 years old. Our HOA didn't have a ARB board or architectural committee so all request for architectural was sent to the regular HOA board. I put in an ARB for a new swimming pool but forgot to included we wanted to include a hot tub. Once I purchased the hot tub and once I found out I needed to get approval so I submitted the necessary form for approval of the hot tub but was denied. Our bylaws don't state hot tubs are not allowed our bylaws state i need arb approval. Our community decided to form a ARB/ architectural committee and I resubmitted my request to approve the hot tub. My request was approved by the new ARB/architectural committee. However I received an email from the president of the ARB/architectural committee who's married to the president of the hoa by the way stating my request for the hot tub cannot be approved because the ARB/architectural committee cannot overturn a request by the hoa board. I need advice on what else I can do? This what the email states "Mr and Mrs had previously submitted an ARB for the Jacuzzi /hot tub and this request was denied by the board on June 8, 2021. The ARB committee does not have the power to overturn a board of directors decision Also as per our bylaws see attached . Therefore the hot tub is denied."
CathyA3
(Ohio)

Posts:2607


07/12/2021 7:58 AM  
I would ask for clarification from whichever group made the decision (although usually it's ultimately up to the board). Is there a ban on all hot tubs in the community? Was there something about your particular hot tub that is a problem and that could be corrected?

I'm a bit stumped. The only cases I know of in which hot tubs in general were banned were in condo communities (mostly issues with common area, water usage, and no way to screen the things) - but none of these seem to apply in your case.
JayN2
(Florida)

Posts:7


07/12/2021 8:07 AM  
Hi CathyA3,

The denial letter i received states hot tubs are not permitted in our community. However when I look at our bylaws it does not state they're not permitted. It states approval is needed. I sent a letter apologizing for not getting prior approval and asked for forgiveness. They still denied the request. I resubmitted my request to the new ARB board and they approved it. I am now confused as to why the board of directors is reversing what the ARB board approved because technically the board of directors was acting as the ARB board when they denied the request.
MelissaP1
(Alabama)

Posts:10595


07/12/2021 8:14 AM  
Ultimately it is a board decision. They can over ride the ARC.

Former HOA President
JayN2
(Florida)

Posts:7


07/12/2021 9:42 AM  
Hi Melissa,

Thank you for replying. The board was acting as the ARC because we never had one. After submitting a letter apologizing and asking them to reconsider the new ARC approved the request. The new ARC was told the only way the board would step in was if the ARC denied a request then the homeowner could go to the board to reveres the ARC decision. Well the ARC approved the request and the board is stepping in to say no. And even though the hot tub doesn't violate the bylaws like two houses next to each other having the same question. The hot tub is in the back yard and not viewable from the street. It just needs approval but for some reason the hoa president has an issue with is in fact his wife who is on the ARC said she can see the hot tub from her back window and therefore she has a problem with it.
SheliaH
(Indiana)

Posts:4297


07/12/2021 9:49 AM  
Your bylaws may not specifically mention hot tubs, but may have language stating the board has the power to enact additional rules as long as they don't override the CCRs. For example, the bylaws may state exterior changes require prior approval from the board of directors. The board of directors may establish specific rules such as a committee will review the initial request and make recommendations to approve or disapprove by the board. There may also be design standards related to things like color,type of material, etc., depending on what the homeowner wants to put in.

As for committees, the board is usually the final authority, and advisory committees work at their pleasure, meaning the people on it can be appointed or removed and the decisions made by the committee don't have to be accepted by the board. As you've seen, some boards may handle the exterior change requests themselves, sometimes because there is no committee or perhaps the committee has been inconsistent in its recommendations.

Keep reading your documents to see exactly what they say regarding exterior changes. If the board has final authority and they said no, you're probably out of luck. This is why homeowners should wait until AFTER they have written approval to make a change - if the board then tries to renege, you may have a better chance of winning your appeal. Hopefully, you can get your money back from the hot tub retailer and if not, perhaps there's something else they sell that you can apply the purchase price to. Just be sure to ask for permission if that other thing may also require board approval.
AugustinD


Posts:1937


07/12/2021 10:08 AM  
Posted By JayN2 on 07/12/2021 6:55 AM
Our bylaws don't state hot tubs are not allowed our bylaws state i need arb approval.
Since you are in Florida, it's almost guaranteed that it is your HOA's Declaration of Covenants (not the Bylaws) that contains restrictions on use of the land. If per chance you do understand this, then you should quote verbatim exactly what the covenants say about what is and what is now allowed on lots, and what powers the ACC has.

If you do not understand the difference between Bylaws and covenants, then chances are high you will understand little of what is posted here as advice, and you should hire an attorney to help you.


JayN2
(Florida)

Posts:7


07/12/2021 10:18 AM  
I'm trying to upload a picture of what it says in our bylaws but i keep getting an error. So i've typed it out section (h) I was sent as the reason for my denial.



Temporary Structures, Outbuildings, Athletic Equipment and Gas Containers

No temporary or permanent structures shall be erected on any lot without the prior approval of the Architectural Control Committee. Without limiting the generality of the foregoing, prohibited installation include: storage sheds, tents, shacks, trailer recreational vehicles, athletic equipment (such as basketball goals, baseball, or tennis pitching machines, nets or batting cages), dog houses, children’s toys, children’s play sets (such as swing sets), pools, and hot tubs. No vehicle or structure on any lot other than the house constructed by developer shall be used as a residence at any time, either temporarily or permanently. With the exception of household barbecue grills containing propane tanks, no gas tanks, gas container or gas cylinder shall be permitted to be placed on or about the outside of any residential structures built on the property or any ancillary buildings and except for household barbeque grills containing propane tanks, all gas tanks, containers and gas cylinders shall be installed underground in every instance where gas is used
JayN2
(Florida)

Posts:7


07/12/2021 10:19 AM  
Hello AugustinD,

I was sent section (h) of the following from what we call our bylaws. i can't upload the pic so I typed it out.



Temporary Structures, Outbuildings, Athletic Equipment and Gas Containers

No temporary or permanent structures shall be erected on any lot without the prior approval of the Architectural Control Committee. Without limiting the generality of the foregoing, prohibited installation include: storage sheds, tents, shacks, trailer recreational vehicles, athletic equipment (such as basketball goals, baseball, or tennis pitching machines, nets or batting cages), dog houses, children’s toys, children’s play sets (such as swing sets), pools, and hot tubs. No vehicle or structure on any lot other than the house constructed by developer shall be used as a residence at any time, either temporarily or permanently. With the exception of household barbecue grills containing propane tanks, no gas tanks, gas container or gas cylinder shall be permitted to be placed on or about the outside of any residential structures built on the property or any ancillary buildings and except for household barbeque grills containing propane tanks, all gas tanks, containers and gas cylinders shall be installed underground in every instance where gas is used
AugustinD


Posts:1937


07/12/2021 10:29 AM  
Compare this excerpt from JayN2's HOA's governing documents:
Posted By JayN2 on 07/12/2021 10:18 AM
I
No temporary or permanent structures shall be erected on any lot without the prior approval of the Architectural Control Committee. Without limiting the generality of the foregoing, prohibited installation include: storage sheds, tents, shacks, trailer recreational vehicles, athletic equipment (such as basketball goals, baseball, or tennis pitching machines, nets or batting cages), dog houses, children’s toys, children’s play sets (such as swing sets), pools, and hot tubs.


to JayN2's version:
Posted By JayN2 on 07/12/2021 6:55 AM
Our bylaws don't state hot tubs are not allowed our bylaws state i need arb approval.


As far as I am concerned, and barring further information, the Board may very well be within its legal rights to reject the hot tub. While you might be able to argue ambiguity in the above clauses, and something called the right to free enjoyment of one's land when there is ambiguity, in my experience, to fight this will require that you hire an attorney. Even with an attorney, a positive outcome is not guaranteed.

AugustinD


Posts:1937


07/12/2021 10:33 AM  
Posted By JayN2 on 07/12/2021 8:07 AM
However when I look at our bylaws it does not state they're not permitted. It states approval is needed.
The self-bias above is blatantly obvious.

JayN2, one of the reasons people are encouraged to hire attorneys is so that there is no self-bias, and the client (you) is (are) forced to face the facts.

JayN2
(Florida)

Posts:7


07/12/2021 10:43 AM  
Wouldn't it be considered bias if they approved the pool? At first they claimed the hot tub was considered an above ground pool but once i pointed out the by laws doesn't even state above ground pools then it shifted to I need approval and no real reason why they denied. Just it wasn't permitted.
AugustinD


Posts:1937


07/12/2021 10:53 AM  
Posted By JayN2 on 07/12/2021 10:43 AM
Wouldn't it be considered bias if they approved the pool? At first they claimed the hot tub was considered an above ground pool but once i pointed out the by laws doesn't even state above ground pools then it shifted to I need approval and no real reason why they denied. Just it wasn't permitted.
-- In my experience, the back-and-forth soap opera (bottom line in a court's eyes) is not relevant.

I read your observation that you think (but do not know for a fact) that the wife of the President does not like looking at your hot tub yada.

What matters is whether the Board can lawfully deny you the hot tub. The Board may or may not be in its legal rights to deny you the hot tub. If you want to contest the denial, I advise hiring an attorney.
JayN2
(Florida)

Posts:7


07/12/2021 11:08 AM  
At the last ARB meeting. Someone on the board who voted to approve the hot tub mentioned that it was in the back yard and can't be seen it from the street. Thats when the comment was made that " I can see it from my back window" because the house in question with the hot tub back yard is in back of the hoa presidents house which is on a elevated hill. I was there and heard it
AugustinD


Posts:1937


07/12/2021 11:17 AM  
Posted By JayN2 on 07/12/2021 11:08 AM
At the last ARB meeting. Someone on the board who voted to approve the hot tub mentioned that it was in the back yard and can't be seen it from the street. Thats when the comment was made that " I can see it from my back window" because the house in question with the hot tub back yard is in back of the hoa presidents house which is on a elevated hill. I was there and heard it
Then you document this the best you can and take it to the attorney whom you will pay $2000 or so just to start.

If you are seeking validation at this forum, for the reality that HOA boards are often unfair, stupid, incompetent, and so on, then you have mine. But otherwise, I am interested only in what you (JayN2) can practically do about this situation. This amounts to two things: (1) Hire an attorney; and (2) run for the Board yourself at the next election, preferably with a group of folks who also are fed up with the current board. Either choice will cost you much time. If giving up your time means a loss of money for you, then maybe it is not worth it. But you won't have my respect.

As noted above, the attorney choice will cost you much money.

In many of these cases, the best choice is to move.
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