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Old 11-28-2006, 11:32 AM   #15
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Homeowner's associations and CC&R debacles are pretty common, and usually the association wins as the owner agreed to abide by the CC&Rs as a deed restriction, regardless of how unreasonable the CC&Rs or their interpretation by the Association board may later seem. Government (including quasi-government such as homeowner associations) however, has no duty to act in any situation. One always has to take into account that merely because an individual or individuals are offended doesn't neccesarily dictate that action must be taken.

What I found interesting about this particular issue was that the association president apparently fired members of the "appearance committee" for failing to take action. It has always sorta seemed to me that the reason to have a "committee" is so that one person's perspective isn't imposed as rule of law on the general membership. I would have normally expected that once taken to committee and rejected that the issue would have been dropped. It's interesting that the president chose to press the issue anyway. I'd hope that the general membership would take action on that at their next business meeting....
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Old 11-28-2006, 11:42 AM   #16
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The only way to beat HOA covbenants is if you can prove you had or were doing whatever the HOA deemed against their covenants before the covenant was passed, i.e., like having your Airstream parked next to the garage, where it had been for the last 5 years, and the covenant was enacted last week.
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Old 11-28-2006, 12:29 PM   #17
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Quote:
Originally Posted by overlander63
The only way to beat HOA covbenants is if you can prove you had or were doing whatever the HOA deemed against their covenants before the covenant was passed, i.e., like having your Airstream parked next to the garage, where it had been for the last 5 years, and the covenant was enacted last week.
You can also "beat" them if the HOA allowed the activity by other members prior to you engaging in the activity. I.E. if they allowed someone in another part of the neighborhood to have a travel trailer parked by their garage in the past without making them move it. IIRC, my HO regulations say I can't have a trailer in certain parts of my yard. I believe mine would fall within guidelines since it is behind the frontal plane and is obstructed from view except when you look straight down the driveway. But there was a neighbor on one of the other streets that had a 5th wheel parked in their driveway for a couple of years before we got our Airstream. There is also a neighbor on another street that has a utility box trailer (commercial) parked in his driveway every night and no one has raised an issue with either yet so I would have the case that those were allowed to be in violation without any objection so mine must be allowed to stay or it would be an act of discrimination against my property. A HOA cannot enforce rules with discrimination or unequally. I would be able to successfully win a lawsuite based on equal protection under the law.

However, since we don't have a formal HOA I don't think too many of my neighbors are aware of any restrictions on their property much less any specific restrictions about trailers. Now if one of them puts a car up on blocks at the curb, I think they would probably get the rules down and start reading them.
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Old 11-28-2006, 02:23 PM   #18
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Update:

Quote:
Originally Posted by 85MH325
Oh boy, Terry! Be thankful you don't live around THIS bunch of curmudeons!

Roger
Good! This was giving us Coloradans a bad name!

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Old 11-28-2006, 09:17 PM   #19
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Originally Posted by Minnie's Mate
so I would have the case that those were allowed to be in violation without any objection so mine must be allowed to stay or it would be an act of discrimination against my property. A HOA cannot enforce rules with discrimination or unequally. I would be able to successfully win a lawsuite based on equal protection under the law.
I wouldn't place any bets on that, but it's a common misconception. While I recognize that state law and case law interpretation vary from state to state, generally one violation of law or contract can't be used as a defense to justify the appropriateness of another violation. Whether or not other similar offenses were prosecuted is irrelevent in determining the facts of another violation.

Roger
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Old 11-29-2006, 07:49 AM   #20
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Quote:
Originally Posted by 85MH325
I wouldn't place any bets on that, but it's a common misconception. While I recognize that state law and case law interpretation vary from state to state, generally one violation of law or contract can't be used as a defense to justify the appropriateness of another violation. Whether or not other similar offenses were prosecuted is irrelevent in determining the facts of another violation.

Roger
We aren't talking about regular law here, we are talking about contractural law. I know that if I get a ticket for speeding I can't successfully plea that there were other speeders that didn't get stopped so I shouldn't be fined. However, HOA's restrictions are different. HOA's have the ability and responsibility to administer their restrictions equally without discrimination. To knowingly allow one homeowner to commit an infraction and not enforce the covenants but to attempt to enforce them on another for the same infraction is not enforcing them equally and would be discrimination against one homeowner in favor of another under contract law. (Not being a lawyer I may not be getting the terminology correct, but the theory is valid.) By giving exception to one HO, the HOA has set a precident and must abide by that precident in future incidents. The only way to rectify the situation would be to retroactively fine the initial offender and the new offender together, but the HOA couldn't just start levying fines against one HO after giving implied consent to the behavior to another HO.
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Old 11-29-2006, 09:29 AM   #21
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Oh my gosh! Too many folks with too much time on their hands. They just resort to making rules to be sure the other folks (who are not as intelligent as they are) don't go bonkers and think for themselves when using their own property. Here in rural Oklahoma, we are a little more layed back. I have property in two communities where there are actually NO building codes. I am building a house down at the lake where there are no building codes. The home owners association down there just wanted to know which direction it would face and what the exterior would be covered with. Oh yes, it has to be at least 720 sq. ft., and I can build it myself if I want to. My main home has no restrictions on parking one or two Argosys or pick-up trucks or car haulers or, oh well anything. The Tag Agents here even came out to look at the VIN on the 58 AS so I wouldn't have to pull it to town. Now that's service. Love these small town independent thinking bubbas.
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