"Snowbird" problem (Cherrywood HOA)

Draft letter submitted to Cherrywood HOA Board on Dec. 11 to request opinion from the HOA's counsel

Dear XXXXXXX,

In the course of discussions within the Cherrywood Homeowners Association Board regarding the proposed Declaration Amendment package submitted to the Cherrywood membership in September 2018, a difficult question has arisen.

Section 4(a) of Article IV presents a number of restrictions on leasing, and one member of the Board, David Fishback (a retired attorney who was not on the Board when the amendments were first presented last year) believes that the restrictions on leases under six months would preclude an owner who be away for less than six months from having a house watcher stay at their house. If true, this would create hardships on individual members that no one on the Board would want to impose.   I do not believe this is the case, but if it is true, I would consider it a critical flaw in the new declaration.  In fact, if the new declaration precludes a house watcher staying for less than six months, I would recommend ending the vote on the Declarations. 

David’s thinking on this matter is as follows:

            Section 4(a) requires that an “Owner shall not lease his Lot for an initial term of  less than six (6) months.”  The impact of this on older HOA members could be very negative.  If, for example, a retiree chooses to be a “snowbird” living in Florida for several winter months, they might understandably wish to arrange for someone to live in their house (with or without “consideration”) to watch the place.  But Section 4(a) would bar such an arrangement, since anyone other than a         member of the owner’s household would be considered a “tenant.” Moreover, is noteworthy that many homeowner insurance policies are voided if a house is  vacant for more than 90 days – and that is a risk no homeowner should have to bear.

So our first question is whether David is correct in concluding that the amended Declaration would preclude the “house watcher” situation described above.  If David’s assumption is not true please explain why.

My response to David’s concern is that if this situation arose, we would ask you for an opinion on how we would be able to resolve the matter under the rules that would exist if the declaration were approved.  Please let us know what your recommendation would be for this question.

David’s reply is if the Declaration precludes the ‘housewatcher” situation, one possible remedy would be if the Board had the authority to grant a waiver or modify the amended Leasing Requirements to allow such a situation.  David believes that the proposed amended Declaration package, as written, would not give the Board those options because (1) nothing in the governing documents permits the Board to grant waivers to clear provisions of the Declaration and (2) the “right to promulgate and adopt additional Rules and Regulations affecting Leasing” only extends to rules and regulations that are consistent with the Declaration itself.  In David’s reading, the language of Section 4(g) is unambiguous: the Board would only have the right to adopt “additional” rules and regulations – i.e., rules and regulations that would add to, not cut back on, the rules and regulations mandated in the amended Declaration. So, in David’s view, the Board could add restrictions (since the Declaration would be silent on any further restrictions) but could not loosen restrictions that the Declaration had specifically mandated.

If David is correct in that (1) we have a problem with the ‘housewatcher” situation, and (2) there is no solution short of new Declarations, Lee would recommend ending the vote.

Therefore, our second question is if there is a problem with the ‘house watcher” situation, is there a solution?  This could solution could be:

1. If under the amended Declaration, the Board would have the authority to grant waivers or change the Leasing Requirements to loosen the mandates.  (David has stated above why he does not believe this would be allowed), or

2.  Some other solution that you propose.

Another possible case is that the option is that regulators (possibly the CCOC) or courts will only take a case if there is an injured party.  If you propose a solution that does not injure anyone, and if no one had standing to oppose it, maybe David’s analysis does not matter.  David’s view, however, is that the standing issue would be controlled by the language in the proposed Article VI, Section 1(a), which provides that “failure to comply with the Association’s Government Documents” can result in legal action brought by the Association or any other Owner.”  David believes that this language provides standing to any member of the Association to seek enforcement of the Governing Documents. 

So our third and last question is would individual Owners have standing to oppose any resolution developed by the Board and another Owner who had sought a waiver or an alteration in the Leasing Requirements.

Sincerely,

Lee Kidd, President

Board of Directors, Cherrywood Homeowners Association