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Subject: Trying to lift restriction on renters not being able to use common area
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Author Messages
BillyC2
(Washington)

Posts:2


06/16/2013 9:58 AM  
I'm on the BOD of a 30 member, single-family homes HOA in Washington State. It's written into our bylaws and covenants that only owners may use our common area (large park, tennis courts, pool with cabana and restrooms). Homeowners may take guests into the common area, but the renters aren't able to access the common area by themselves. Two of the houses are rented to families with children. One family has a severely autistic girl who loves to swim. The homeowner didn't disclose the common area use restriction to the rental family and they were crushed to learn that they couldn't freely use the pool.

(The neighborhood is moderately upscale, so the high rent usually weeds out college kids and partiers.)

I've checked with the agent who handles our HOA insurance policy, as well as consulted with 2 lawyer friends, and all say that there's not an increased liability with renters using the common area versus homeowners.

After talking to numerous homeowners who agree that the policy doesn't make sense, I'm trying to get the covenants changed. Changing them requires a 2/3rd vote from the homeowners (so 20 out of the 30 homes). After knocking on lots of doors and talking with the neighbors, the overwhelming sentiment is for changing the covenants. However, the BOD president and the spouse (a lawyer) of one of the board members are very opposed to this change.

I'm wondering if anyone has any advice on dealing with this issue? Also, do other HOA's restrict the use of common areas to only homeowners? or are renters allowed use?

I appreciate any help that's offered!
TimB4
(Virginia)

Posts:16706


06/16/2013 10:17 AM  
Draft an amendment and start soliciting signatures on a petition to call a special meeting of the membership for the specific purpose of amending the CC&Rs to what you wrote.

As you collect signatures, collect proxies (if proxies are allowed). This way when the meeting is called you will have the votes to make the change happen.
AnnH4
(Florida)

Posts:53


06/16/2013 12:35 PM  
I believe our deed restrictions state that our amenities may be used by homeowners, their designated guests, and also their tenants. If it is a guest, we have to accompany them and we are also responsible for any damages caused by our guests or tenants.
MelissaP1
(Alabama)

Posts:9136


06/16/2013 3:50 PM  
The purpose of restricting the renters from use of the amenities is a punishment to the owners who aren't paying. It isn't the damage or abuse issues. If an owner is not paying their dues, then amenities should be held from them. That then should extend to their renters. If the owner does not have rights, then how can their renter who would be their guest be allowed to?

It's a punishment for not paying dues and holding the owner's feet to the ground for obeying the rules. Or not having their renter's obey the rules.

Former HOA President
SteveM9
(Massachusetts)

Posts:3599


06/17/2013 6:36 AM  
It's written into our bylaws and covenants that only owners may use our common area (large park, tennis courts, pool with cabana and restrooms).


There may be a way for the owner to give a limited power of attorney. Liited to use the common areas. Something like that. Power of attorney or similar is just as legal as an owner.
JonD1


Posts:0


06/17/2013 11:12 AM  
It would be helpful if the OP posted the wording in their documents which apply to renters not be able to use amenities on the property.

Perhaps then we might be able to understand the situation better.

CarolR11


Posts:0


06/17/2013 12:04 PM  
In answer to your question, Billie, tenants in our high rise condo towers may use all of our amenities. I've never seen any cases on this forum where tenants aren't allowed to use these amenities.

Per our CC&Rs and state laws, we may suspend these privileges if there are uncured violations and/or delinquencies whether or not the unit is owner or tenant occupied.

Like Jon, I'd like to see the exact wording too. It's seems a little unusual that this would be in both your bylaws and in your CC&Rs.

Why does it matter that the Board prez & another director oppose this change? How many are on your Board? Even if those two are a majority on the Board, follow Tim's advice.
ValerieS2
(Michigan)

Posts:244


06/17/2013 1:32 PM  
This smacks of discrimination.
BillyC2
(Washington)

Posts:2


06/17/2013 2:25 PM  
Thanks for the responses. I've copied the wording from the CC&R section below. I re-read the bylaws and there's no mention in it of who can and can't use our center area.



The XXX association with a board of directors maintains a private recreation area, which includes a swimming pool, cabana, tennis courts, and open play area (hereinafter collectively referred to as the “Center Area”) located…. The Center Area is owned, operated and maintained by XXXX, a Washington nonprofit corporation (hereinafter referred to as the “Association”) pursuant to the Articles of Incorporation and Bylaws of the Association. Use of the Center Area is limited to lot owners who are members of the Association and their approved and accompanied guest. In no manner is the Center Area open to the general public or unaccompanied guests. Membership in the association is appurtenant to the lot owned by the Association member and may not be transferred separate and apart from ownership of the appurtenant lot.”

I'm wondering if we word an amendment that says something like:
Use of the center area may be transferred from the owner to the tenant as long as the following conditions are met:
1. Owner deposits $500.00 with the association as a damage deposit to cover possible damage to the center area by the tenant (THIS WOULD BE INCLUDED TO APPEASE SOME HOMEOWNERS)
2. Owner must provide tenant with a current copy of the covenants, codes and restrictions as well as the by -laws. Tenant must abide by these regulations. If found to be in violation, the privilege of using the center area could be revoked by an action of the board.



Any other thoughts about wording an amendment to let renters use our center area??


thanks!
JohnC46
(South Carolina)

Posts:9322


06/17/2013 3:11 PM  
Billy

Simply put, your are punishing/discriminating against renters.

Additionally your present wording is bad in many ways. It says restricted to lot owners and their accompanied guests. This could mean that anyone one not on the title (such as my kids, wife, etc.) cannot even use the pool as they are not on the title thus they are not lot owners and as such (the lot owner), I have to accompany them to the pool as my guests.

You all have to go back to the drawing boards and stop trying to punish.

Maybe something like lot owner and their approved guests. Drop the accompanied bit.

Hope this helps.


JonD1


Posts:0


06/17/2013 4:17 PM  
After reading the section provided it would seem to me nowhere does it mention tenants. My guess when these documents were drafted they were not even considered. To suggest what was quoted prohibits tenants is a stretch. IMO the ability to use amenities would transfer to the tenant from the unit while they leased the property. Much like perhaps an assigned parking spot or limited common property deck.

Whoever has determined this provision relates to tenants is IMO incorrect or viewing it in a way to serve their point of view. Now there just might be a reason for that.

Rather then going through the process and cost of amending the documents I would suggest the Board (if a majority would support this, and I mean a majority of the Board) then the Board could simply agree that the rights to use community amenities is transfered to the tenant during the period they rent a property in this community.

One thing that troubles me is the OP's efforts on behalf of someone renting a property. And the suggestion the OP feels it is right and correct to amend documents to accomodate a tenant on the property whom might leave when their lease expires.

In my view members of the Board should act in the interest of the unit owners. And to suggest the property cover cost, time and effort required to make the suggested changes seems to be acting on behalf of someone who has no ownership in the property.

Hopefully, if the facts provided are complete this matter can be easily remedied.

An old adage in the law states. Sometimes you should consider the meaning of the law versus the letter of the law. Seems to me the letter of the law might be seen to prohibit tenants but the intent was never that.

Hopefully, this won't require submission to the Supreme Court for resolution.....

CarolR11


Posts:0


06/17/2013 4:47 PM  
I tend to see it your way, Jon. Unless we see a flurry of replies saying that tenants are denied access to recreational amenities, I, too, think it was inadvertently left out. I'm 100% certain that if renters in my HOA were denied use of such amenities, we'd have one hella time selling AND renting our units, i.e., we'd have no tenants. About 37% of our residents are tenants. All the high rises around us don't deny the perks to their tenants.

There's also the issue of reasonableness. I'm sure we can all think of cases when an owner would have to move out due to job/military transfer, moving to a nursing home, etc. And during the recent recession, some owners here moved out and rented their units till the market improved and then sold them--as they're successfully doing right now. I'd think that an HOA attorney could offer an opinion of this without too much cost being involved.

Billy wrote that two members of the Board are opposed to permitting tenants to enjoy the amenities--the Center Area. I asked Billy if those two are a majority on the Board and he didn't answer.

No one is answering whether their own HOAs refuse access to renters to their HOA amenities.

In our case, where there are tenants, the owners, per pour CC&Rs, no longer are permitted to use these amenities.

KellyM3
(North Carolina)

Posts:1488


06/17/2013 6:16 PM  
Billy,

Get your 2/3rds signatures on a petition and move forward. It's interesting that you're carrying this torch on behalf of apparent absentee landlords.

Also, from a strict lifestyle point of view, you'll make your community more 'rental-friendly' by changing the rule. If you want homeowners to overwhelmingly occupy the community, don't seek the change.

It's the landlord's problem with the tenant that they didn't disclose all material facts. There is no right of a tenant to receive HOA benefits because the owner is responsible for the tenant's behavior in using amenities. I see your point but think the CC&Rs were written purposely and could respect the decision to follow the current rule but find it wholly understandable if the entire community wants to change that rule officially. There's no wrong answer here, in my opinion.
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