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Subject: Community consistency
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Author Messages
LynnC8
(Colorado)

Posts:1


07/15/2021 4:13 PM  
Hello, I’m new to this group, so I don’t know if this has been covered. In our community, overall consistency has been the determining factor when a particular issue is not specifically mentioned, by specific name, in the CC&Rs. Reason being, no governing document can possibly foretell all circumstances that will arise in the future. Therefore, if a homeowner requests to be allowed to do something that is not specifically mentioned by name, the ACC and Board will determine if said request fits the overall consistency of the community… has it been allowed in the past, is it common with several homes, etc. However, our most recently elected Board will not do this. They will not enforce anything that isn’t specifically mentioned in the CC&Rs. For instance… trash dumpsters have never been allowed in this community. Whereas our CC&Rs do not prohibit dumpsters by name, they state that garbage containers must be noiseless, covered, and out of view. In addition, there are other sections of the CC&Rs that state garbage/rubbish cannot be allowed to accumulate on any property, so as to create an odor to arise therefrom, or to be unsightly or offensive to any other property or it’s occupants. Another section states more of the same, regarding garbage, but also states all garbage containers must be screened from view. Here’s the problem with dumpsters: they are not quiet, they allow trash to accumulate, and they cannot be kept out of sight, as they need to be in the front portion of the property so that garbage company can access them to empty. One has already been placed, without approval, and the homeowner is filling it with horse waste. The smell and fly and bug infestation is atrocious, which creates a nuisance to the adjacent neighbors. There is, indeed, a section in our CC&Rs that prohibits a homeowner to create a nuisance to other neighbors. Is our Board going outside their authority by allowing dumpsters when no other Board before them has done so, and there have not been and are not dumpsters in the community? (With the exception of the guy who did it without permission.)
AugustinD


Posts:1937


07/15/2021 4:25 PM  
Posted By LynnC8 on 07/15/2021 4:13 PM
our CC&Rs [snippage] state that garbage containers must be noiseless, covered, and out of view. [snip O]ther sections of the CC&Rs [snip] state garbage/rubbish cannot be allowed to accumulate on any property, so as to create an odor to arise therefrom, or to be unsightly or offensive to any other property or it’s occupants. Another section states more of the same, regarding garbage, but also states all garbage containers must be screened from view. [snip] One [dumpster] has already been placed, without approval, and the homeowner is filling it with horse waste. The smell and fly and bug infestation is atrocious, which creates a nuisance to the adjacent neighbors. There is, indeed, a section in our CC&Rs that prohibits a homeowner to create a nuisance to other neighbors. Is our Board going outside their authority by allowing dumpsters when no other Board before them has done so, and there have not been and are not dumpsters in the community? (With the exception of the guy who did it without permission.)
In my opinion the dumpster you describe violates the covenants. Give three warnings and offer a hearing. If the covenants or Colorado statutes allow fines, state what the fine will be in the notices. Then start fining and big.
KerryL1
(California)

Posts:8734


07/15/2021 4:50 PM  
I read your explanation the same way as Augustin does. The device you describe are not permitted based on your CC&Rs.

Look, we have a CC&R that bicycles can't be ridden on on hardscape (condo bldg.). We do not have spell out the brand names of bikes in our rules.

Are you on the Board, Lynn? Doesn't sound like it. But owners can and do file complaints in writing to the board. Cite the exact wording of your covenants and the section numbers for the Board in writing. Cite your nuisance clause too. Ask that the Board take action as permitted by your governing documents or CO state statutes. In my HOA, a letter is written by our PM giving the alleged violator xx days to remove the nuisance. If that doesn't occur, a 2nd letter goes to the alleged violator inviting them to a hearing to discuss the matter.

Now, if you'v already taken those steps, see if you can get a few other other owners to join you in sharing a few hundred dollars rtf get the opinion of an HOA or contract attorney.and its contents
KerryL1
(California)

Posts:8734


07/15/2021 4:51 PM  
I read your explanation the same way as Augustin does. The device you describe are not permitted based on your CC&Rs.

Look, we have a CC&R that bicycles can't be ridden on on hardscape (condo bldg.). We do not have spell out the brand names of bikes in our rules.

Are you on the Board, Lynn? Doesn't sound like it. But owners can and do file complaints in writing to the board. Cite the exact wording of your covenants and the section numbers for the Board in writing. Cite your nuisance clause too. Ask that the Board take action as permitted by your governing documents or CO state statutes. In my HOA, a letter is written by our PM giving the alleged violator xx days to remove the nuisance. If that doesn't occur, a 2nd letter goes to the alleged violator inviting them to a hearing to discuss the matter.

Now, if you'v already taken those steps, see if you can get a few other other owners to join you in sharing a few hundred dollars rtf get the opinion of an HOA or contract attorney.and its contents
BenA2
(Texas)

Posts:1114


07/16/2021 6:24 PM  
I agree that the dumpsters as described violate your CC&Rs. To answer the broader question of can you deny something that does not violate your CC&Rs, the answer is generally, no. You cannot deny something just because no one has done it before unless, of course, your CC&Rs state that things must be uniform or consistent with existing items. I believe many CC&Rs have such wording.

I would not deny anything unless you are sure of your legal standing. Every state has different statutes and precedents that could affect your rulings so it is best to ask an attorney if you are not sure.
MaxB4
(California)

Posts:1614


07/16/2021 8:53 PM  
Posted By AugustinD on 07/15/2021 4:25 PM
Posted By LynnC8 on 07/15/2021 4:13 PM
our CC&Rs [snippage] state that garbage containers must be noiseless, covered, and out of view. [snip O]ther sections of the CC&Rs [snip] state garbage/rubbish cannot be allowed to accumulate on any property, so as to create an odor to arise therefrom, or to be unsightly or offensive to any other property or it’s occupants. Another section states more of the same, regarding garbage, but also states all garbage containers must be screened from view. [snip] One [dumpster] has already been placed, without approval, and the homeowner is filling it with horse waste. The smell and fly and bug infestation is atrocious, which creates a nuisance to the adjacent neighbors. There is, indeed, a section in our CC&Rs that prohibits a homeowner to create a nuisance to other neighbors. Is our Board going outside their authority by allowing dumpsters when no other Board before them has done so, and there have not been and are not dumpsters in the community? (With the exception of the guy who did it without permission.)
In my opinion the dumpster you describe violates the covenants. Give three warnings and offer a hearing. If the covenants or Colorado statutes allow fines, state what the fine will be in the notices. Then start fining and big.



Curious, who writes the three warning letters and invites them to a sit down, when, as the OP stated, this board is allowing them?
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