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Our community which has a hoa has a pool which is a private…

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Our community which has...

Our community which has a hoa has a pool which is a private pool . The board of directors is giving pool passes to people outside the community,passes to home owners families and friends. They do not live in community, they are not the homeowners. Is this legal

Lawyer's Assistant: What steps have you taken so far? Have you prepared or filed any paperwork?

None yet. I did find out from Health and Safety director that we are a private pool and should only have membership for the homeowners

Lawyer's Assistant: Where is the property located?

It's St . JONES COMMONS IN DOVER,DE.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I was also told that under their, the depth of health that renters are not suppose to have membership but that it conflicts with renters rules and regulation with the state, I was also told that threatens if they are allo_ed by w to use the pool they cannot have guests, since they are nor The owners

Submitted: 2 months ago.Category: Real Estate Law
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Answered in 4 minutes by:
5/30/2018
Real Estate Lawyer: Legal Eagle, Lawyer replied 2 months ago
Legal Eagle
Legal Eagle, Lawyer
Category: Real Estate Law
Satisfied Customers: 14,295
Experience: Licensed to practice before state and federal court
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Hello! I am a licensed attorney, admitted to practice in state and federal court. I have a nearly 100% satisfaction rating (click here for more info) so all that means is that you can count on me to help today. Because I want to provide you with the most accurate answer possible, do you mind if I take a moment to review your question?

Please keep in mind that our conversation does not include an attorney-client relationship and this is for general information purposes only.

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Customer reply replied 2 months ago
Sure,please review
Real Estate Lawyer: Legal Eagle, Lawyer replied 2 months ago

The answer to your question is yes, it's legal, but only if the HOA has passed a bylaw that allows people to hand out guests passes. Otherwise, it's not.

To clarify, a homeowners association, through its board of directors, has a duty to enforce its governing documents. An HOA has a duty to enforce the governing documents in good faith and not in an arbitrary or capricious manner through procedures which are fair and uniformly applied. Courts have determined that there is a presumption of reasonableness and it requires that recorded covenants and restrictions be enforced unless they are wholly arbitrary, violate a fundamental public policy, or impose a burden on the use of affected land that far outweighs any benefit. The failure of the HOA to act fairly in the enforcement of the CC&Rs could be a violation of the law or at least a breach of contract. There’s a site that I’ve used in the past where you can find a good template for advising of a breach of contract. It's a bit easier (and cheaper) than going through litigation and I have seen it be effective in the past. If this doesn’t work, sadly, the only other option is to either go through an informal mediation or file a lawsuit in your local court. This website is also pretty cool because you can just purchase, download, and go. Click here to get started.

Because I value your input, I would like to know whether you have any other questions for me today that I could help you with?

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Customer reply replied 2 months ago
what you are saying is that the board could give out passes to people that are not residents
Real Estate Lawyer: Legal Eagle, Lawyer replied 2 months ago

Correct, but it has to be consistent with a bylaw that has allowed them to do so. If that is not the case, then this is going to be a breach of contract. They would have to repeal some "residents only" bylaw that restricts access and provide specifically for guest passes.

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Customer reply replied 2 months ago
That contradicts the meaning of private pool to home owners only
Real Estate Lawyer: Legal Eagle, Lawyer replied 2 months ago

I certainly understand and I agree; however, if the board passed a resolution allowing this, then it's legal. Otherwise, it's a breach of contract since it's supposed to be for residents only. Is there a board member whom you could contact to verify whether this was passed at some meeting?

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Customer reply replied 2 months ago
I checked our bylaws that are recorded and none show about that. They may have voted at a meeting to allow passes to guests but that's not a by law change and not legal,correct
Real Estate Lawyer: Legal Eagle, Lawyer replied 2 months ago

That's correct. If the bylaws do not say anything regarding this, then they have a duty to enforce the residents or owners only rules that they agreed to enforce.

What other questions did you have for me today about this?

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Customer reply replied 2 months ago
how can a bylaw even if passed go against state law
Customer reply replied 2 months ago
It would then turn into a public pool
Customer reply replied 2 months ago
the health and safety code states it's up to the beneficial owners to make changes. Not the bod
Real Estate Lawyer: Legal Eagle, Lawyer replied 2 months ago

I'm not sure about that necessarily. A private owner of a pool is allowed to have guests. To be a public pool, the pool has to be run by the state and local government. Having outsiders doesn't turn it into a public pool. Regardless, you and the other owners have a cause of action against the HOA for what they've failed to do.

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Real Estate Lawyer: Legal Eagle, Lawyer replied 2 months ago

I see what you mean. Without knowing the specific procedures for your HOA, it's not possible for me to tell whether they violated the health and safety code, but I think you're on the right path as far as enforcing your rights.

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Customer reply replied 2 months ago
What steps do I have as a home owner to rectify the zituation
Customer reply replied 2 months ago
Situation
Customer reply replied 2 months ago
You also mentioned a Web site that could help
Real Estate Lawyer: Legal Eagle, Lawyer replied 2 months ago

I would speak with other homeowners first to see if they had any ideas on how to do this or any experience in doing this with this specific HOA. If that doesn't work, then you and the other owners can send a joint letter to the HOA advising that they don't have any legal authority to allow this to happen and they must enforce the rules and say if they don't you'll be forced to bring a lawsuit. If that doesn't work, then your only other option is to file a lawsuit in small claims court to force the HOA to take action.

Did you have any other questions for me today? If not, were you satisfied with my service today:-)?

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Real Estate Lawyer: Legal Eagle, Lawyer replied 2 months ago

And yes, if you go to www.verycheaplegalforms.blogspot.com, you can find templates for breach of contract that could help take some of the thinking out of what to say.

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Customer reply replied 2 months ago
No you were very good and answered me quickly. Please give me the website you were talking about earlier
Real Estate Lawyer: Legal Eagle, Lawyer replied 2 months ago

Thanks so much. It's www.verycheaplegalforms.blogspot.com.

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