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Subject: Amendments that interfere with previous rights?
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AdamL1
(Idaho)

Posts:122


08/24/2021 7:52 AM  
so question what this means.
----------------------------------
CCR: 13.4.3 Effect of Amendment. Any amendment of this Master
Declaration approved in the manner specified above shall be binding on and
effective as to all Owners and their respective properties notwithstanding that
such Owners may not have voted for or consented to such amendment. Such
amendments may add to and increase the covenants, conditions, restrictions
and easements applicable to the Property but shall not prohibit or
unreasonably interfere with the allowed uses of such Owner’s property which
existed prior to the said amendment.
-----------------------------------

The way I am reading this: An amendments can add to and increase CCR's, but cannot reasonably restrict something that previous was allowed.

So the question is: what does "shall not prohibit or unreasonable interfere with the allowed uses...which existed prior" mean?

Does "allowed use" mean something special? Like it has to be something specially called out, written down as 'allowed' to qualify? Or does this mean that CCR's are restrictive...if its not in the CCR's, then it is allowed and doesn't need to be specifically written down?

Example: Lots of people have patio chairs in their backyard. There's no CCR discussing patio furniture and thus, its not not allowed, and people just get them if they like. Suddenly there's an amendment to CCR's to add a section saying "Patio furniture in backyard is not allowed."
Does this interfere with a prior allowed use?
SheliaH
(Indiana)

Posts:4297


08/24/2021 8:41 AM  
You do realize that sooner or later you're going to have to go to an attorney with some of these questions, don't you? We can guess what it means and we may be right, but most of us ARE NOT ATTORNEYS! It's not always a good idea to get legal advice from the internet, especially when we don't live in your state.

But since you asked (and I hope Augustin weighs in on this because he has a knack for this stuff), here's one person's opinion. First of all, context is important - this portion begins with "Any amendment of this Master Declaration approved in the manner specified above shall be binding on and effective as to all Owners and their respective properties notwithstanding...." How does your community go about amending the documents - usually a significant number of people (say 75% of homeowners) have to approve, and there may be other requirements relating to things like if a special meeting has to be called, can one appoint a proxy to vote on this (which is another can of worms if you've seen other discussion on the use of proxies). etc. Then I'd have to see the original CCR and what the amendment is addressing.

Regarding "allowed use," consider the intended use of your home and the land it sits on. This isn't a landfill or car lot - it's supposed to be a place your and your family live in and enjoy, and you should be able to do it without intruding on the rights of your neighbors, who also live in and want to enjoy their property. The keyword to this may be "reasonable" - for example, if your home has a backyard, it would be reasonable for most people to assume homeowners want to enjoy it (a place for kids to play and get-togethers with friends and family). If we're talking about patio furniture, it would be reasonable to expect people to use such furniture because it's designed to be used outdoors, as opposed to the stuff you put in your living room.

I suspect this is about your beehive again, so what's your real question?
JohnT38
(South Carolina)

Posts:794


08/24/2021 8:53 AM  
I agree Sheila. We have beat this horse to death.
CathyA3
(Ohio)

Posts:2607


08/24/2021 9:21 AM  
Also not a lawyer, but I believe an amendment could provide additional restrictions if the homeowners agreed to it.

In fact, come to think of it, we approved an additional restriction about five years ago and it went through the normal procedures (75% of owners had to vote Yes). It's possible that your CC&Rs or your state may require that a more stringent amendment would need unanimous consent - and I can see the reasoning for doing it that way - but in my state it's the normal super-majority required for any other amendment.
JohnC46
(South Carolina)

Posts:11667


08/24/2021 9:23 AM  
Adam

You have beat this bee thing to death. Time to either lawyer up, get rid of the bees, or move out.
AugustinD


Posts:1937


08/24/2021 6:31 PM  
Posted By AdamL1 on 08/24/2021 7:52 AM
so question what this means.
----------------------------------
CCR: 13.4.3 Effect of Amendment. Any amendment of this Master
Declaration approved in the manner specified above shall be binding on and
effective as to all Owners and their respective properties notwithstanding that
such Owners may not have voted for or consented to such amendment. Such
amendments may add to and increase the covenants, conditions, restrictions
and easements applicable to the Property but shall not prohibit or
unreasonably interfere with the allowed uses of such Owner’s property which
existed prior to the said amendment.
-----------------------------------

-- Does the Declaration define the term "the Property"? I am wondering if this means strictly common area.

-- Is there a "uses" section in the Declaration, saying for example that no rentals are allowed (or maybe rentals are allowed by permission of the Board)?

-- Either way I continue to think an attorney could argue that your beehives, if compliant with the City Code, do not violate the covenants, because of the covenants' express reference to the City Code on the subject of nuisances.

-- I agree with others that this is becoming repetitive. I continue to recommend waiting for the HOA to make a substantive move on this issue, like a letter from the HOA's attorney threatening suit.
AdamL1
(Idaho)

Posts:122


08/25/2021 8:03 AM  
Posted By AugustinD on 08/24/2021 6:31 PM

-- Does the Declaration define the term "the Property"? I am wondering if this means strictly common area.




Definition: "Property" shall mean those portions of the Property described on
Exhibit A attached hereto and incorporated herein by this reference, including each
lot, parcel and portion thereof and interest therein, including all water rights
associated with or appurtenant to such property.
-->Exhibit A: description of all the parcels.



Posted By AugustinD on 08/24/2021 6:31 PM

-- Is there a "uses" section in the Declaration, saying for example that no rentals are allowed (or maybe rentals are allowed by permission of the Board)?



I don't see anything specifically called 'uses' or similar. No section that talks about rentals either.


Posted By AugustinD on 08/24/2021 6:31 PM


-- Either way I continue to think an attorney could argue that your beehives, if compliant with the City Code, do not violate the covenants, because of the covenants' express reference to the City Code on the subject of nuisances.

-- I agree with others that this is becoming repetitive. I continue to recommend waiting for the HOA to make a substantive move on this issue, like a letter from the HOA's attorney threatening suit.




Agreed, but there are several other issues as well....the HOA is nitpicking a lot of things. The beehives are a specific issue, but I was hoping this thread would just be about the term "allowed use," not rehashing CCRs about nuisance and code. I agree, I'm kinda just sitting tight in a holding pattern, but there also is the general human concern of wanting to have good relations with the neighborhood, even it it is a vocal minority of grumps.

some issues:
- tree swing in front yard....nothing in CCR's discussing this, but they are trying to add rules/amendments to block this. Is this an "allowed use"?
- landscaping drainage creek that runs behind a dozen houses that is HOA property. CCR's say that it is the homeowner's responsibility to maintain the 4feet to the highwater mark....but current BoD is trying to block many people from touching the creek. New amendment to block maintaining is definitely restricting an previous use.
- basketball hoops.....there neighborhood is littered with them, for 30 years. BoD is trying to pass an amendment to ban basketball hoops.
- and then there's the beehive issue.
AugustinD


Posts:1937


08/25/2021 9:28 AM  
Posted By AdamL1 on 08/25/2021 8:03 AM

Agreed, but there are several other issues as well....the HOA is nitpicking a lot of things. The beehives are a specific issue, but I was hoping this thread would just be about the term "allowed use," not rehashing CCRs about nuisance and code. I agree, I'm kinda just sitting tight in a holding pattern, but there also is the general human concern of wanting to have good relations with the neighborhood, even it it is a vocal minority of grumps.

some issues:
- tree swing in front yard....nothing in CCR's discussing this, but they are trying to add rules/amendments to block this. Is this an "allowed use"?
- landscaping drainage creek that runs behind a dozen houses that is HOA property. CCR's say that it is the homeowner's responsibility to maintain the 4feet to the highwater mark....but current BoD is trying to block many people from touching the creek. New amendment to block maintaining is definitely restricting an previous use.
- basketball hoops.....there neighborhood is littered with them, for 30 years. BoD is trying to pass an amendment to ban basketball hoops.
- and then there's the beehive issue.
In general, Board-created rules may not be more restrictive than covenants or bylaws.

I think you would have to post your covenants (with name of the HOA and other identifying information redacted) for people to do more than guess about the wording of the covenants. And guessing is time-intensive and annoying.


I get the feeling you are on the warpath, on account of the bee hives. I know you would not be the first. But do keep in mind the reality of the situation: You lost the election. To force the board to abide by the covenants will require an attorney and threats of lawsuits.
AdamL1
(Idaho)

Posts:122


08/25/2021 9:59 AM  
I don't know if i'd call it warpath, but rather preparing a defense if they want to keep pressing these issues.

ugg, why is it so hard to expect an HOA to act according to the CCR's rather than feels.

oh well.
AugustinD


Posts:1937


08/25/2021 10:19 AM  
Posted By AdamL1 on 08/25/2021 9:59 AM
why is it so hard to expect an HOA to act according to the CCR's rather than feels.
You're going through a nightmare now with the bee hives. You have become studious of CC&Rs and HOA law in general. Why do you think Boards do not do the work you are doing and often, do not comply with CCR's and HOA law?
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