is 'nuisance' subjective or defined clearly?

[surfer34]

Jurisdiction

Idaho

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 specifically allowed and called out, written down as 'allowed' to qualify? Or does this mean that CCR's are restrictive rules and if its not in the CCR's, then it is allowed by default, 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?

So a legal question about this general concept.

our HOA docs have clear and explicit definitions for 'nuisance' and then also references city code for any other nuisances not defined in the CCR's.

My question: can the HOA interpret this to mean anything they feel like is a nuisance?

I would think that the CCR's dedicate an entire section to explicitly defining nuisance and then also says 'look to city code for anything else'. This means that only things defined as a nuisance in city code and explicitly in the CCR is the only thing that can be a nuisance.

However, many HOA ppl are interpreting this as "a nuisance is whatever I feel it is."

any thoughts or conversation from this forum?

 

[army judge]

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?

Common sense tells me that if one enjoyed using their patio furniture, denying the person the ability to use their furniture would certainly impede and interfere with using and enjoying said furniture.

My common sense (as well as my dad's admonishment) kept me from buying real estate controlled by property Nazis, masquerading as an HOA = Home Owner's Association.

Dad said if you bought such a property, you were the one owned by the HOA.

 

[Zigner]

I disagree with army judge (respectfully, of course). An "allowed use" is a use that is specifically allowed, as opposed to one that is simply not addressed.

For example, let's say that the CCR's allowed for properties to have a 6' tall fence, and then the CCR's are changed to state that properties are allowed to have a 4' tall fence. In the case of such a change, the properties with a 6' tall fence should be allowed to keep their fences because they were previously allowed...

You should speak to an attorney about your specific questions. That attorney will be able to review all of the relevant facts and advise you based on such a review.

 

[zddoodah]

Your post appears to be entirely about hypotheticals. Is that the case? Or is something happening that has prompted you to make this inquiry?

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

The part of this sentence before the comma simply restates what you quoted. As for the part after the comma, you presumably meant to write "may not unreasonably restrict."

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

Well..."prohibit" is a simply and easily understood English language word. "Reasonable" (and its antonym, "unreasonable") is a common legal term that is supposed to impose an objective standard, but it really just introduces a bunch of subjectivity into things. For present purposes, it means that interference is ok as long as it isn't unreasonable. It's impossible to say what that means in the abstract. As far as "allowed uses," we have no possible way of knowing what those are.

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

I would say the latter is more likely, but no one who hasn't read your CC&Rs can know for sure.

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?

It doesn't just interfere; it prohibits, which, as we saw above, is a no-no.

our HOA docs have clear and explicit definitions for 'nuisance' and then also references city code for any other nuisances not defined in the CCR's.

My question: can the HOA interpret this to mean anything they feel like is a nuisance?

I couldn't even begin to know how to answer this question about a provision in your CC&Rs and a local city code that I have never read.

 

[surfer34]

thank you for the reply. I'll try to distill this and keep it as uncomplicated as I can.

Your post appears to be entirely about hypotheticals. Is that the case? Or is something happening that has prompted you to make this inquiry?

Kinda. several different issues, but for the sake of a long, drawn out conversation, let's just use the thought experiment of:
an activity I am doing is not referenced at all in CCR's. No restriction against it, no sentence saying it is allowed. Just 'is not discussed.'

As far as "allowed uses," we have no possible way of knowing what those are.

Right. I have no questions about 'prohibit' or 'unreasonably interfere'. The question is: What does "allowed uses" mean? Is this a special legal term? Does this mean that something must be "allowed" in the CCR's to qualify, must be written in already? Or does this mean that the near-infinite possibility of things that are not mentioned explicitly in the CCR's are "allowed uses"?

It doesn't just interfere; it prohibits, which, as we saw above, is a no-no.

Hence my thought experiment. Someone has patio furniture. There is absolutely no mention in CCR's for anything to do with this, whether its controlled, restricted, or allowed. An activity that is not controlled by the CCR's.

Agreed, in this thought experiment, the new Amended CCR now prohibits patio furniture, which unreasonable interferes with an activity that existed prior. But, the question is: Is this or is this not an "allowed use"? What does "allowed use" mean?

I couldn't even begin to know how to answer this question about a provision in your CC&Rs and a local city code that I have never read.

For the sake of simplicity and not dragging into a long copy/paste, let's just assume the definition of Nuisance explicitly states:
A nuisance is X, Y, Z, and anything in City Code.
City Code explicitly states what is and what is not a nuisance.
The activity in question is not X, Y, or Z.
The activity in question is not a nuisance as defined by City Code and in fact is positively allowed and permitted to occur.

 

[Zigner]

Creating hypothetical scenarios is not really going to help you. You should contact a local attorney who can review all of the relevant information and provide advice that is specific to your situation.

 

[zddoodah]

an activity I am doing is not referenced at all in CCR's. No restriction against it, no sentence saying it is allowed. Just 'is not discussed.'

Ok...and is anyone suggesting you shouldn't be able to do it or that the CC&Rs should be changed to prohibit it?

The question is: What does "allowed uses" mean? Is this a special legal term?

The term has no particular meaning under the law.

Creating hypothetical scenarios is not really going to help you.

Agree...especially when the hypotheticals are incomplete.

If there is some real, present effort by others to prohibit or restrict things you do and want to continue doing on your property, consult with a local attorney.