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Subject: Help Me Understand this CC&R RE: Pools
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CarissaM


Posts:0


08/03/2021 1:25 PM  
I hope this isn't too obtuse but I am trying to gain understanding on a particular CC&R that didn't pass on the Amendments. (FL residential HOA, 41 homes, no PM, 3 BOD)

STATEMENT FROM CC&R's:

POOLS. No above ground pools may be installed on any Lot. All pools must be enclosed by fences or wall on all sides. (the CC&R Amendment was to remove "WALL" and replace with "SCREEN")
____________________________________________

We can't tell if this is a safety statement for drowning or if it's an aesthetics statement like, we don't want to see you in your pool so you must enclose it in a fence or a wall...and maybe it's just not that big of a deal and we can keep going without this amendment at all.

We have three homes with pools and a screen enclosure but no fence or wall.

Do the homeowners who have a screen and no fence/wall now need to get a fence/wall based on the current statement? Is it reasonable to assume that a screen enclosure is, in fact, a wall?



MaxB4
(California)

Posts:1601


08/03/2021 1:35 PM  
My reading of what you posted is that a wall (probably block) or fence (probably wood or plastic) needs to enclosed the property. The screen would be safety purposes, which might be a city of state code.
CarissaM


Posts:0


08/03/2021 1:42 PM  
Assuming that, is it now the BOD responsibility to tell the homeowner that according to this CC&R they are in violation of the wall/fence requirement and will need to install a fence or wall to be compliant?

We have a LONG standing history of not enforcing a couple of CC&R's and the attorney says this is a no-go and opens up for selective enforcement on the CC&R's that we do enforce.

We attempted to amend the CC&R to include screens as an option (they are required for safety in the city/county) so that people who elect not to fence in their yard are not obligated to do so. But we can't get the votes. Ironically, these particular homeowners did not vote on the amendments.


AugustinD


Posts:1920


08/03/2021 1:46 PM  
The original covenant does not specify what type of fence. I think a chain link fence would keep wandering children out about as well as a wall. But of course, people can see through a chain link fence.

In your opinion, does the screen enclosure act to keep wandering children out about as well as a chain link fence? If so, I say the screen enclosure is fencing.
MaxB4
(California)

Posts:1601


08/03/2021 1:52 PM  
You need to figure out what the "intent" was/is for the wall or fence.
CarissaM


Posts:0


08/03/2021 1:52 PM  
Posted By AugustinD on 08/03/2021 1:46 PM
The original covenant does not specify what type of fence. I think a chain link fence would keep wandering children out about as well as a wall. But of course, people can see through a chain link fence.

In your opinion, does the screen enclosure act to keep wandering children out about as well as a chain link fence? If so, I say the screen enclosure is fencing.





Yes, that is the purpose of the screen enclosure, it's meeting a safety requirement or it's just keeping the mosquitos at bay. In my city/county you're required to enclose all pools in a screen with a certain height requirement on the doors or install a pool safety fence to get building approval.

And that's what I'm trying to avoid here is splitting hairs over the term "fence/wall".

If we are OK with the screen enclosure being a "fence/wall" is it just until we are challenged by someone who says it's not?

We are still trying to figure out what is worth chasing an amendment for and what is not.
CarissaM


Posts:0


08/03/2021 1:52 PM  
Posted By AugustinD on 08/03/2021 1:46 PM
The original covenant does not specify what type of fence. I think a chain link fence would keep wandering children out about as well as a wall. But of course, people can see through a chain link fence.

In your opinion, does the screen enclosure act to keep wandering children out about as well as a chain link fence? If so, I say the screen enclosure is fencing.





Yes, that is the purpose of the screen enclosure, it's meeting a safety requirement or it's just keeping the mosquitos at bay. In my city/county you're required to enclose all pools in a screen with a certain height requirement on the doors or install a pool safety fence to get building approval.

And that's what I'm trying to avoid here is splitting hairs over the term "fence/wall".

If we are OK with the screen enclosure being a "fence/wall" is it just until we are challenged by someone who says it's not?

We are still trying to figure out what is worth chasing an amendment for and what is not.
CarissaM


Posts:0


08/03/2021 1:54 PM  
Posted By MaxB4 on 08/03/2021 1:52 PM
You need to figure out what the "intent" was/is for the wall or fence.




How does a person determine the intent or can we determine the intent as a BOD and then it's all hunky-dory until the next BOD comes along?

We certainly aren't keen on telling homeowners they have to have a fence/wall but we also want uniform enforcement across the board to be fair.
SheliaH
(Indiana)

Posts:4291


08/03/2021 1:55 PM  
You say the CCR proposal DIDN't pass, so I would say pools have to be enclosed by a fence or wall, as written. I wouldn't focus on whether this was safety vs. aesthetics - you don't know the intent of the developer who likely wrote it. Aesthetics are subjective anyway, so let's just assume it was written as a safety measure to prevent young kids from getting in the pool and falling in.

As for the people with a screen around the pool (I assume these aren't above ground pools), I would think this CCR was around long enough for them to know they were supposed to get a fence or wall, so the board would be within its rights to tell them to bring the pools into compliance at their expense. If you're one of the three, straighten up and fly right - or be prepared to explain to the board why you didn't get it in the first place. If you're on the board, you and your colleagues will have to decide if you want to grandfather these people in and enforce the rule on new pools, or demand they bring it into compliance. The CCR didn't pass, so if these homeowners want screens, they'll have to work harder on convincing fellow homeowners to push for amending that part of the documents.
CarissaM


Posts:0


08/03/2021 2:05 PM  
Posted By SheliaH on 08/03/2021 1:55 PM
You say the CCR proposal DIDN't pass, so I would say pools have to be enclosed by a fence or wall, as written. I wouldn't focus on whether this was safety vs. aesthetics - you don't know the intent of the developer who likely wrote it. Aesthetics are subjective anyway, so let's just assume it was written as a safety measure to prevent young kids from getting in the pool and falling in.

As for the people with a screen around the pool (I assume these aren't above ground pools), I would think this CCR was around long enough for them to know they were supposed to get a fence or wall, so the board would be within its rights to tell them to bring the pools into compliance at their expense. If you're one of the three, straighten up and fly right - or be prepared to explain to the board why you didn't get it in the first place. If you're on the board, you and your colleagues will have to decide if you want to grandfather these people in and enforce the rule on new pools, or demand they bring it into compliance. The CCR didn't pass, so if these homeowners want screens, they'll have to work harder on convincing fellow homeowners to push for amending that part of the documents.




You are correct, they are screened in pools, none above ground, they just don't have a fence or a wall. This wasn't an issue with prior BOD, it's only now that we are learning that it's not OK as a board to choose not to enforce a particular bylaw (as prior BOD did), so now we are trying to determine next steps, this amendment didn't pass and that means those houses need a fence or a wall....or they need to show up to vote to pass the amendment to include a screen as an acceptable surrounding for a pool.

So now I have three homes, possibly in violation if they must have a fence or a wall and a screen is not considered a fence or a wall.

Also, how can a board grandfather in homes that are out of compliance if it's contradicting of a CC&R?
BenA2
(Texas)

Posts:1108


08/03/2021 2:11 PM  
"Fence or wall" is about as ambiguous as you can get. Unless those terms are defined in your CC&Rs or in the law, I would consider a screen a fence.
BenA2
(Texas)

Posts:1108


08/03/2021 2:13 PM  
Posted By CarissaM on 08/03/2021 2:05 PM
Posted By SheliaH on 08/03/2021 1:55 PM
You say the CCR proposal DIDN't pass, so I would say pools have to be enclosed by a fence or wall, as written. I wouldn't focus on whether this was safety vs. aesthetics - you don't know the intent of the developer who likely wrote it. Aesthetics are subjective anyway, so let's just assume it was written as a safety measure to prevent young kids from getting in the pool and falling in.

As for the people with a screen around the pool (I assume these aren't above ground pools), I would think this CCR was around long enough for them to know they were supposed to get a fence or wall, so the board would be within its rights to tell them to bring the pools into compliance at their expense. If you're one of the three, straighten up and fly right - or be prepared to explain to the board why you didn't get it in the first place. If you're on the board, you and your colleagues will have to decide if you want to grandfather these people in and enforce the rule on new pools, or demand they bring it into compliance. The CCR didn't pass, so if these homeowners want screens, they'll have to work harder on convincing fellow homeowners to push for amending that part of the documents.




You are correct, they are screened in pools, none above ground, they just don't have a fence or a wall. This wasn't an issue with prior BOD, it's only now that we are learning that it's not OK as a board to choose not to enforce a particular bylaw (as prior BOD did), so now we are trying to determine next steps, this amendment didn't pass and that means those houses need a fence or a wall....or they need to show up to vote to pass the amendment to include a screen as an acceptable surrounding for a pool.

So now I have three homes, possibly in violation if they must have a fence or a wall and a screen is not considered a fence or a wall.

Also, how can a board grandfather in homes that are out of compliance if it's contradicting of a CC&R?



AugustinD


Posts:1920


08/03/2021 2:17 PM  
Posted By CarissaM on 08/03/2021 1:52 PM

Yes, that is the purpose of the screen enclosure, it's meeting a safety requirement or it's just keeping the mosquitos at bay. In my city/county you're required to enclose all pools in a screen with a certain height requirement on the doors or install a pool safety fence to get building approval.

And that's what I'm trying to avoid here is splitting hairs over the term "fence/wall".

If we are OK with the screen enclosure being a "fence/wall" is it just until we are challenged by someone who says it's not?

We are still trying to figure out what is worth chasing an amendment for and what is not.
First, I think it is reasonable to surmise that the fence/wall requirement is for safety, as in keeping out wandering kids.

Second, in my opinion "fence" is ambiguous enough to include screening, where the screening accomplishes safety to the same extent a fence does.

Third, and borrowing a bit from how case law thinks about "ambiguities," ambiguous phrases or words should be interpreted in favor of free enjoyment of property.

Fourth, if an owner challenges the board on this and screams: "The screen enclosure is not a fence! I am suing you all for not enforcing the covenant!" Then I vote for the board to respond calmly that the board feels the purpose of the covenant is safety; the word "fence" is ambiguous; the screen accomplishes safety to the same extent (or more than) a fence does; and the board's understanding of ambiguities is that ambiguities are to be interpreted in favor of the lot owner." If the owner is not satisfied, let him/her hire an attorney and threaten suit. Then report back here.

Fifth, get an attorney's opinion.
MelissaP1
(Alabama)

Posts:10590


08/03/2021 2:34 PM  
A few things may be overlooking. Insurance. Many homeowner's policies require fencing or other safety methods around pools. Not knowing the full relationship of the HOA and Homeowner's insurance policies, this is a serious factor. Who wants to be on the hook for a pool accident or faulty installation?

Our county has a pool inspection department. Which has certain requirements. This includes pool's must be fenced in. Believe has to be atleast a 4 foot height. It can be chain link or wood. The HOA may want to put their own specifics on that. My neighbor is in the county and has a 4 foot chain link fence. His yard has a 6 foot wood fence around most of the perimeter.

FYI. My step brother was about 8 years old when he went into his aunt's pool. He climbed over her fence, hit his head, fell into the pool. He was in the water for over 5 minutes before his mother found him. He was brain damaged for life. Could only move his head till he finally died in his 20's.

So I don't really care about "looks" of a pool. I am thinking safety and insurance. It's just sad when a bad accident happens that the whole time could have been prevented.

Former HOA President
JohnC46
(South Carolina)

Posts:11665


08/03/2021 2:39 PM  
As the OP is in FL I am assuming the pool screen is a Lanai type screening used to screen porches, decks, patios, pools, etc. She should check what local regulations say before challenging the HOA.
KellyM3
(North Carolina)

Posts:1806


08/03/2021 2:57 PM  
As an HOA president, I'd likely argue that whatever current government code is for safety would trump an older rule if that rule pre-dates the passage of the safety ordinance or state code/law on pool enclosures.

Having the State enforce a screening cover, then having the HOA enforce a hard fence structure around the same pool "footprint" seems wonky when both rules are designed, at their time, for safety. Just my opinion.
JohnT38
(South Carolina)

Posts:794


08/03/2021 3:11 PM  
Was the intent to allow Lanai's which are very popular there?
KerryL1
(California)

Posts:8729


08/03/2021 4:30 PM  
I agree with those who assert that a screened-in pool is fenced. It's barrier that keeps people out (or in). In my Miami neighborhood of years ago, 90% of homes had pools and ALL were screened in. They ALL were completely enclosed by screening-- that all had screen roofs. The were much safer that say a 5 (or, OMG! 4" fence). we had no trouble getting insurance.

I'd follow Augustin's advice --tho' I see no need to talk with an attorney at this time
CarissaM


Posts:0


08/03/2021 5:37 PM  
Thanks to all for sharing your insight and opinion on the screen versus fence/wall issue. My condolences to the poster who was affected personally by a family member in a child drowning incident. These tragedies can be mitigated and absent of chasing the rule breakers, we would love everyone to consider safety first.

All of these homes meet city/county safety requirements for pools. The only issue is the CCR says fence/wall and we didn’t know if a screen enclosure qualifies as such. The attorney suggested changing the term wall to screen.
CarissaM


Posts:0


08/03/2021 5:41 PM  
Posted By KerryL1 on 08/03/2021 4:30 PM
I agree with those who assert that a screened-in pool is fenced. It's barrier that keeps people out (or in). In my Miami neighborhood of years ago, 90% of homes had pools and ALL were screened in. They ALL were completely enclosed by screening-- that all had screen roofs. The were much safer that say a 5 (or, OMG! 4" fence). we had no trouble getting insurance.

I'd follow Augustin's advice --tho' I see no need to talk with an attorney at this time




This was kind of the direction I was going, I don’t want to chase down clarity amendments that are ambiguous just so a couple people are clear.
AugustinD


Posts:1920


08/03/2021 5:42 PM  
Posted By CarissaM on 08/03/2021 5:37 PM
The attorney suggested changing the term wall to screen.
If you folks make another attempt to amend the covenants, then I would change wall and fence to just "barrier compliant with state law, county law, and municipal law." As interested, see FS 515 at http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0500-0599/0515/0515.html

On another note: I realize you are somewhat new here. Welcome to the forum. I have read your posts responding to threads others' started and realize you are either experienced, smart or both. It's good to have you here.
CathyA3
(Ohio)

Posts:2600


08/04/2021 4:19 AM  
Posted By CarissaM on 08/03/2021 1:25 PM
... snip ...

Do the homeowners who have a screen and no fence/wall now need to get a fence/wall based on the current statement? Is it reasonable to assume that a screen enclosure is, in fact, a wall?




Just a comment on this part:

Generally when CC&Rs or rules change in a way that makes some previously compliant feature now a violation, the board will grandfather the feature (with the agreement that it will be brought into compliance when the feature is modified or replaced). This is often due to the expense involved for the homeowner.

This approach makes sense when the violation involves esthetics: different community colors, different styles of fencing, etc.

However, when you're dealing with health and safety issues, it's less appropriate to grandfather. Insurers and the law are probably going to go with current standards. So while it may cost a lot to replace an older item, it will also cost more to keep the item and deal with potential fallout from it.

So as with many HOA/COA questions the answer won't be totally black and white, but you generally won't go wrong if you err on the side of safety and reducing liability risks.

(FWIW, I consider a wall to be solid, while a fence can have gaps in it. Can you shoot a bullet through it? Or can a sufficiently determined person or critter get through it (not around it, *through* it)? Probably not a wall in my book, so I'd view screening as a fence but not a wall. I agree with others that it's ambiguous.)
CarissaM


Posts:0


08/04/2021 6:35 AM  
Posted By CathyA3 on 08/04/2021 4:19 AM
Posted By CarissaM on 08/03/2021 1:25 PM
... snip ...

Do the homeowners who have a screen and no fence/wall now need to get a fence/wall based on the current statement? Is it reasonable to assume that a screen enclosure is, in fact, a wall?




Just a comment on this part:

Generally when CC&Rs or rules change in a way that makes some previously compliant feature now a violation, the board will grandfather the feature (with the agreement that it will be brought into compliance when the feature is modified or replaced). This is often due to the expense involved for the homeowner.

This approach makes sense when the violation involves esthetics: different community colors, different styles of fencing, etc.

However, when you're dealing with health and safety issues, it's less appropriate to grandfather. Insurers and the law are probably going to go with current standards. So while it may cost a lot to replace an older item, it will also cost more to keep the item and deal with potential fallout from it.

So as with many HOA/COA questions the answer won't be totally black and white, but you generally won't go wrong if you err on the side of safety and reducing liability risks.

(FWIW, I consider a wall to be solid, while a fence can have gaps in it. Can you shoot a bullet through it? Or can a sufficiently determined person or critter get through it (not around it, *through* it)? Probably not a wall in my book, so I'd view screening as a fence but not a wall. I agree with others that it's ambiguous.)




Just to clarify if this isn’t clear, we are at the part where the attorney said here’s what I would change, and he recommended the reference change from wall to screen. He said if you don’t change this you have homeowners in violation and you have to enforce all the CC&R’s. And this is just the first one. There were several CC&R’s that the board overlooked across the neighborhood and I guess it’s not until a Board is enacted that follows the declarations that it becomes a problem.

So nothing has changed, we just have a better understanding of the CC&R about pools and now recognize some homeowners are not in compliance.

But safety is a concern to be considered beyond going to homeowners who built in this development or added pools in a prior BOD time and were either approved or not required to add a fence because of a lax board, ambiguous terms or even total disregard for the declaration.

And this is the first of several, we also have a “No Boats or RV’s visible from the road” and there are at least ten homeowners with a visible boat/RV or even both. Again, we tried to amend the CC&R to allow boats/RV’s provided they were behind a 6’ privacy fence. But we didn’t get the votes. So here we are, with CC&R’s to enforce, homeowners who have been allowed to skirt the CC&R and a board feeling conflicted. We, as a board, agree we are OK with boats behind a fence and the community obliges that. But it is wrong and it opens up for a homeowner to cry selective enforcement.

I just don’t know if this stuff is worth it, I mean, it’s been going fine just the way it is. We haven’t had a homeowner with a problem about a fence around their screened pool and we haven’t had a homeowner come forward with a problem about a boat/RV. I’m just wondering if the board and the homeowners have been ok with things the way they were, why are we fine tooth combing our CC&R’s to enforce violations? I wonder if we can’t just go status quo until someone raises their hand and says, my neighbor has a screen enclosure and it’s not fenced in and I have a two year old and I’m concerned. Or another says my neighbor has an unsightly RV and I want it out in accordance with the CC&R’s.

CarissaM


Posts:0


08/04/2021 6:39 AM  
Posted By AugustinD on 08/03/2021 5:42 PM
Posted By CarissaM on 08/03/2021 5:37 PM
The attorney suggested changing the term wall to screen.
If you folks make another attempt to amend the covenants, then I would change wall and fence to just "barrier compliant with state law, county law, and municipal law." As interested, see FS 515 at http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0500-0599/0515/0515.html

On another note: I realize you are somewhat new here. Welcome to the forum. I have read your posts responding to threads others' started and realize you are either experienced, smart or both. It's good to have you here.




This is helpful for a future attempt to amend and YES we are going to go back again and try again. I want to include a little more education about the amendments and what each change means for the homeowner. I think if we had a little more education we might get a little less apathy.

We got 19 out of 28 needed which was a record turnout. We just have to come together again and educate more and try to net some of these violations as votes, because my three homeowners who are in violation didn’t even show up to vote on an amendment that affected them personally.

And thank you! I’m probably a little smart and a little experienced. HA!
CarissaM


Posts:0


08/04/2021 6:39 AM  
Posted By AugustinD on 08/03/2021 5:42 PM
Posted By CarissaM on 08/03/2021 5:37 PM
The attorney suggested changing the term wall to screen.
If you folks make another attempt to amend the covenants, then I would change wall and fence to just "barrier compliant with state law, county law, and municipal law." As interested, see FS 515 at http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0500-0599/0515/0515.html

On another note: I realize you are somewhat new here. Welcome to the forum. I have read your posts responding to threads others' started and realize you are either experienced, smart or both. It's good to have you here.




This is helpful for a future attempt to amend and YES we are going to go back again and try again. I want to include a little more education about the amendments and what each change means for the homeowner. I think if we had a little more education we might get a little less apathy.

We got 19 out of 28 needed which was a record turnout. We just have to come together again and educate more and try to net some of these violations as votes, because my three homeowners who are in violation didn’t even show up to vote on an amendment that affected them personally.

And thank you! I’m probably a little smart and a little experienced. HA!
CarissaM


Posts:0


08/04/2021 6:40 AM  
Posted By AugustinD on 08/03/2021 5:42 PM
Posted By CarissaM on 08/03/2021 5:37 PM
The attorney suggested changing the term wall to screen.
If you folks make another attempt to amend the covenants, then I would change wall and fence to just "barrier compliant with state law, county law, and municipal law." As interested, see FS 515 at http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0500-0599/0515/0515.html

On another note: I realize you are somewhat new here. Welcome to the forum. I have read your posts responding to threads others' started and realize you are either experienced, smart or both. It's good to have you here.




Thank you, that is kind and helpful for the next attempt at a change.
CarissaM


Posts:0


08/04/2021 6:41 AM  
Apologies for the multiple posts! I see the server can be some-what lagging!
AugustinD


Posts:1920


08/04/2021 6:49 AM  
-- If multiple owners are violating a covenant X; no enforcement action, re covenant X is taken for years; and driving around the neighborhood would lead one to believe covenant X does not exist, then there's a good argument that the covenant legally has been abandoned. Then if someone complains about covenant X being violated, the board can respond: 'We're dam-ed if we do and dam-ed if we don't. Enough years have gone by that we think we are less dam-ed if we do not attempt to enforce the covenant at this point.'

-- The "selective" in "selective enforcement" refers to selectively enforcing against Owner Jones but not another Owner Smith, where both Jones and Smith are violating say a particular covenant X.

-- Enforcing Covenant X but not enforcing Covenant Y is not selective enforcement, as far as the meaning of "selective enforcement" in the courts is concerned.
CarissaM


Posts:0


08/04/2021 7:01 AM  
Posted By AugustinD on 08/04/2021 6:49 AM
-- If multiple owners are violating a covenant X; no enforcement action, re covenant X is taken for years; and driving around the neighborhood would lead one to believe covenant X does not exist, then there's a good argument that the covenant legally has been abandoned. Then if someone complains about covenant X being violated, the board can respond: 'We're dam-ed if we do and dam-ed if we don't. Enough years have gone by that we think we are less dam-ed if we do not attempt to enforce the covenant at this point.'

-- The "selective" in "selective enforcement" refers to selectively enforcing against Owner Jones but not another Owner Smith, where both Jones and Smith are violating say a particular covenant X.

-- Enforcing Covenant X but not enforcing Covenant Y is not selective enforcement, as far as the meaning of "selective enforcement" in the courts is concerned.





First, it is reasonable to assume the first as well, when I moved in this neighborhood in 2018 I assumed by driving around that boats/RV’s were acceptable because 25% of the homes have a boat/RV visible.

I do understand the selective enforcement of the same rule among two homeowners but in reading posts on this forum it seems that when a disgruntled homeowner is violated for a CC&R they list out the myriad of other violations in the community as leverage for their violation. Like, a homeowner gets a violation for a BBALL goal and that homeowner says, hey they’re not supposed to be street parking and I see people do that all the time.

But it is helpful to consider that possibly some CC&R’s have been abandoned and someone complains we can address it at that juncture rather than stirring up a bee’s nest of what now amounts to be 13 homeowners in violation of one or two CC&R’s that have essentially been abandoned.
LetA
(Nevada)

Posts:1466


08/04/2021 11:59 AM  
Honestly, I would use the word barrier instead of wall and see how that flies. Wall is too ambitious, and barriers are what many jurisdictions and health districts use for safety around pools.
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Forums > Homeowner Association > HOA Discussions > Help Me Understand this CC&R RE: Pools



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