Possible Loophole in OTARD
David R Beatson (W4LNY)
on
August 29, 2004
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I live in a Town Home which has a homeowners association which bans all antennas and satellite dishes. In my case, I own the inside and outside of my home and the land it sits on, in which case OTARD states I am allowed to have a Satellite Dish without the HOA's approval. Next to my Dish I have a random wire antenna that I use for 6-meter ham stuff.
While talking to the FCC Attorneys and the HOA and reviewing mountains of documents, something stood out like a bright light in a dark field. The FCC says OTARD laws protecting homeowners from restrictive covenants and restrictions "applies to DBS Satellite Dishes no greater than one Meter in Diameter, satellite dishes used for Internet Access and to Antennas or Dishes used to receive or transmit any signal classified by the FCC as Data." The last part caught my eye because CW, RTTY, Packet are all classified under Part 97 as a data service. I know this because it was a question on the General Written exam I just took a few weeks ago.
So my conclusion is that an Antenna used to receive or transmit CW, RTTY or packet is protected under OTARD as long as you own or have sole control over the place where the antenna is installed, just as a satellite dish would be.
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Possible Loophole in OTARD
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by LNXAUTHOR on August 29, 2004
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- i certainly hope that the wording you found provides an avenue of success for you... i just went through the whole house-hunting and HOA examination process during a home-buying attempt here on the Suncoast of Florida...
- my wife looked at more than 50 non-HOA properties to try and find a house that would be Ham-friendly (a wonderful XYL!)... unfortunately, in nearly all cases - and keep in mind that these homes were listing at $250K-$300K - the non-HOA homes were is poor shape, or if in good shape, overpriced according to the comps or in a neighborhood with trashed-out residences...
- we were pretty disappointed, so we took a different tack and started looking at HOA properties - but as part of house-hunting, asked to see the HOA covenants...
- lo and behold, we found a really great house with an HOA that ALLOWS antennas! the only caveat was that the antenna could not be visible from the street...
- since Pinellas County has an overall limit of 35 feet for any antenna structure, and the house has an apex of over 25 feet, i felt that this was a good compromise: we found a great house in a great neighborhood that suits my wife's need (for commute time, proximity to shopping, etc.), and that allows me to pursue a great hobby...
- i wasn't looking for a property to put up a tower for DX, and if i was the equation would have been different...
- i'm not happy about being in an HOA community, but this situation seems to be the best compromise for me - YMMV
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Possible Loophole in OTARD
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by W3JJH on August 29, 2004
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Nice try, but you should read the actual FCC Rule. 47 CFR 1.4000(a)(2) states:
For purposes of this section, "fixed wireless signals'' means any commercial non-broadcast communications signals transmitted via wireless technology to and/or from a fixed customer location. Fixed wireless signals do not include, among other things, AM radio, FM radio, amateur ("HAM'') radio, Citizen's Band (CB) radio, and Digital Audio Radio Service (DARS) signals.
Sorry, but the Rule does not apply to ham radio antennas.
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Possible Loophole in OTARD
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by KG4YJR on August 29, 2004
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It goes both ways, no double standards. When your neighbor puts up a batting cage for their son, you all better not jump on the bandwagon or call your lawyers to make him take it down.
LNXAUTHOR, congrats on the new home. You had mentioned your search to me in a previous thread.
73
Dave
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Possible Loophole in OTARD
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by W4LNY on August 29, 2004
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UPDATE, First I want to point out the section I qouted was not in the oiginal law but was an ammendment to the law, it would seem the first part of the law would exclude my argument, but it seems that the wording of the ammendment and the actual law are a little contradictory. I was told the purpose of the ammendment was to strengthen OTARD and expand the types of antennas covered under it.As far as my case, the FCC Attorney helping me was able to convince my HOA to allow me to keep my Amateur Radio Antenna and of coarse my Dish. Two things in my favor were the covenants banning dishes is also the same article banning antenna's, the FCC said since the article bans dishes the article it self is not legal, the second thing was that all my violation notices were lumped together as one violation for both the antenna and dish, and again the FCC said because the violation letters were not enforceable since they included my dish.I may have just gotten lucky, but I worked hard to make the most persuassive argument I could to both the HOA and FCC, and in the end that is what saved my antenna.73David - W4LNY
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RE: Possible Loophole in OTARD
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by K7VO on August 29, 2004
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My situation is similar to that of LNXAUTHOR. We have a HOA here and while they covenants do not prohibit antennas they do state that the HOA may regulate antennas and satellite dishes (probably not legal) and that anything that is put up must be approved by the architectural committee.
Well... at the time we had a 35' ordinance (now 100' thanks to the work of ARES and FCARC) and I drew up a picture of a 30' tower set far enough behind the house to be barely visible. It got approved. It's now more like 40' and I still have had no complaints more than three years later.
Some HOAs can be worked with and reasoned with so long as you make it clear that you are every bit as concerned about property values and aesthetics as they are. After all, you've invested in the community as much as anyone else.
73,
Caity
K7VO
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by WIRELESS on August 29, 2004
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You are swimming in dangerous waters!. When trying to get around covenants or working with 'boards of directors' be ready for more grief than you probably ever seen. For every positive outcome, I have seen 1000 that didn't.
I tangled with a few boards about antennas and I can say with no doubt whatsoever, that if I have to live in a hillbilly shack to have no covenants, that is infinitely better than dealing with the COMPLETE IDIOTS that are on boards of directors.
And if you get the urge to test your board of directors to see what they might do if you just put up an antenna that is not allowed, you should find a minimum of $10k for lawyers for just a simple fight.
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RE: Possible Loophole in OTARD
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by KB4IFS on August 29, 2004
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Let's get real. The fact is MOST Hams don't belong to the ARRL or care to join. Additionally, I am of the opinion that most Hams don't care about this issue since they have resolved themselves it won't be changed OR they have their home with antenna and that's all that is important to them, not anyone else. Hams are not willing to contribute money, join the ARRL, or donate time to even write a letter to get this changed. Land developers are in the power seat and they WILL NOT change. No one else cares. As far as Public Service being applauded for rescue efforts, Skywarn, MARS, and hundreds of other exmples of the public benefit, they have VERY short memories. Check the news a week after Charles, Frances or Tropical Storm 7. Its forgotten. So learn to live with it, move to the country, or find another hobby. BTW, every hobby suffers land restrictions, Hunting, model airplanes, target shooting, ect. Whatever.
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RE: Possible Loophole in OTARD
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by N6AYJ on August 29, 2004
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I agree with KB4IFS. The general public doesn't like hams, couldn't care less whether a ham is allowed to have an antenna, and thinks antennas are ugly. The majority of homeowners in an HOA have the right to ban antennas if they think they are ugly, and you have the right not to buy a residence there if you object to the antenna covenants. But what you DO NOT have the right to do is buy a residence, knowing full well that it is subject to an antenna covenant, and then piss and moan about the covenant or, worse still, force the HOA to incur legal expenses to enforce the covenant just because you are too big a sniveler to admit that you voluntarily signed an unfavorable contract.
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by IX4NT on August 29, 2004
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Dave, I wish you luck and hope you can beat an HOA with some arguments, but Section 207 of the Telecommunications Act of 1996 (codified at 47 C.F.R. Sec. 1.4000) isn't going to help you. Those rules and the protection afforded by the Act apply only to RECEPTION devices. So, unless you intend to be a ham-SWL, this section won't be much help. PRB-1 provides more assistance and I've seen it used to help persuade private property owners to cooperate with hams.
Without question, amateur radio provides an important public service. In fact, it is the official means of communication for FEMA with respect to local/regional disasters.
Some of my colleagues who live in planned developments or in HOA-governed properties put up disguised antennas and operate. Many of these developments are fully 'cabled' and, if installed properly, won't be bothered by amateur communications. Sometimes it's better to seek forgiveness than permission.
Again, good luck. Let us know how you it turns out.
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RE: Possible Loophole in OTARD
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by K4RAF on August 29, 2004
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Another long, pradling diatribe from Mr. ShellGame? Why can't he keep a post to under encyclopedia size?
KB4IIFS & N6AYJ are spot on. Based on numbers alone, this will never fly. 300,000,000 vs. ~25,000 (at most).
You are trying to skirt willfully signing a contract that restricts you to certain conditions & somehow call it your "rights".
You know why you don't have "Freedom of Speech" or "Freedom from Random Search & Seizure" rights in the military?
You waive those rights when you agree to sign the contract for service.
I have to question any lawyer who doesn't understand the basics of private property, a signed contract & negotiating any exceptions away before signing. I also have to question the motives of a lawyer who fronts as an amateur advocate, has no license (spare me the excuses) & one of his websites seeks to protect FM pirates ("microbroadcasters") from tower construction restrictions.
I dealt with guys like this building tower sites for a certain wireless carrier. The difference between them & Mr. ShellGame is they NEGOTIATED any exceptions before signing a contract to build a site. Mr. ShellGame clearly doesn't understand how to do that so he seeks to force it down private property owners' throats.
NG
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Possible Loophole in OTARD
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by N3OP on August 29, 2004
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I think there is another loophole in the OTARD that hams can exploit to defeat antenna restrictions. This rule states that it covers "An antenna that is designed to receive local television broadcast signals." Well would a 3 element yagi that works on 6 meter meet this requirement? Since TV channels 2 and 3 are located near the 6 meter ham band, a 6 meter yagi could be used to receive these broadcast signals. Well, what if this yagi included 10, 15 and 20 meters in addition to 6 meters, would it still meet the requirement?
Just a thought!
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Possible Loophole in OTARD
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by KF4LVC on August 29, 2004
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David,
It certainly appears that you have generated a great deal of interest in this topic. You and I have discussed this at some length, and though I think you may have some possible justification through OTARD, it certainly does not specifically cover amaterur or CB (or any other genre of communications) per-se. This allows itself to very broad interperetation and may even lend itself to the discouragement of ham-type antennae.
Also, be very careful of the wording on your lease agreement and your HOA's agreement. You may very well be able to put up anything you want, provided it is on your property and SOLELY on your property. This may mean that you can leagally justify an HF vertical, or even a small yagi, as long as it is on your property alone. Currently, your random-wire extends well beyond your plot. In your defense, I will state for the forum that it extends from your plot over land that cannot be develoved at all and is, in effect, barren (i.e., none of you neighbors can claim your antennea over their land). However, it is a legality that you must consider. You know and I know that, for all practical purposes, your current setup is nearly invisible to your neighbors on each side and COMPLETLY invisible from your front yard. I believe that you have done a commendable job making sure that your antenna is as UN-offensive as possible. I think you should persue the avenue of researching the emergency communications aspect of this situation. This may ultimately have much more sway with the HOA. It really would be no different than having a police officer move into the neighborhood and having to park his personal vehicle AND a sqad-car in front of his home, knowing full-well that each owner is typically alloted one parking space. Consider gathering every scrap of information you can regarding the emergency communcations aspect. I think that if you can justify that your antennea actually serve a vital community function, they may give you the permission you seek.
If I can help in any way, just call!
KF4LVC
Vince
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by W0MT on August 29, 2004
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David,
I caution you to not to get too excited about your discovery. I dont think you have found anything. By an analogy. let me give you an example of what you have found. Suppose you see a sign that says, Speed limit, 65 mph. Then you see a sign that says, Truck speed limit, 55 mph. If you are driving a truck, what speed limit do you suppose you must obey? The answer is obvious, 55 mph. A judge wouldnt give you ten seconds to argue that because these two signs are contradictory, you should be allowed to drive your truck at 65 mph.
When laws are interpreted, there are several rules that are applied. One is that the laws are read in such a manner that allows all of the law to be held as valid. Another is that a specific law takes precedent over a general law. When you read that antennas for digital communications are allowed (general law) and amateur radio antennas are not allowed (specific law), it should be interpreted as digital communication antennas are allowed except for any antennas for amateur radio (digital or otherwise).
Might you win your case? Maybe. You might also win the lottery but I wouldnt bank on it.
73, Robert W0MT
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by AD5JN on August 30, 2004
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Hmm, What about new hams that live in a HOA. When they signed the contract had no idea that he/she would want to become a ham.
Ronn
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RE: Possible Loophole in OTARD
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by WB2WIK on August 30, 2004
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AD5JN, it makes no difference.
Buying a property having deed restrictions assumes you accept those restrictions. Not having a 40' sailboat when you purchased the property doesn't mean that when you decide you're interested in sailing, you can now store your new 40' boat on your property, unless there is no restrition prohibiting that.
It is unfortunate that in some areas, covenant-free neighborhoods have evidently fallen apart to the extent they're no longer desirable. I've seen this written a few times, and it's rather shocking but must be so, since people keep writing about it. I've never lived anywhere like that, and surely don't want to!
If, in my general area, I had to purchase a home having restrictive covenants simply to assure it wouldn't be a hovel, I'd move from that area. It isn't like this in most places. Here in L.A., for example, the most prestigeous neighborhoods are covenant-free and they glisten as they should considering they're populated entirely by millionaires. The next tier down from that is the same: Quality of the neighborhood, or its schools or services, has nothing to do with covenants.
WB2WIK/6
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by LNXAUTHOR on August 30, 2004
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WB2WIK wrote: "If, in my general area, I had to purchase a home having restrictive covenants simply to assure it wouldn't be a hovel, I'd move from that area. It isn't like this in most places. Here in L.A., for example, the most prestigeous neighborhoods are covenant-free and they glisten as they should considering they're populated entirely by millionaires. The next tier down from that is the same: Quality of the neighborhood, or its schools or services, has nothing to do with covenants."
- that's what i expected! however, i've found it's a real mix down here... you can have mobile home parks (nothing against mobile home owners mind you) less than a quarter-mile from million-plus neighborhoods...
- alas, i didn't have a choice on this move: either divorce the XYL or find a compromise... she's still working, supports my hobby, and has a good 15-to-20,000 miles on the transmission - so there you go!
:-)
- additionally, in my case the move was to a more antenna-friendly neighborhood; my last QTH was a condo-restricted townhouse that did not allow ANY antennas (i resorted to a 'semi-stealth' windom, which had a 23' horizontal leg through the attic, a 45' vertical leg down the side, with the feedline on the inside of the attic vent going to a second-floor shack... i still managed to work many DX entities at 20W or less on at least five bands, so i was happy...
- i guess it's all a matter of perspective?
:-)
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by KD4AC on August 30, 2004
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LNXAUTHOR... I'm in the same situation you're in. I'm over in Hillsborough County. When we wanted to buy a house, I told the wife "NO deed restricted houses" and she had no problem with that. So we contacted a real estate agent and told him what we were looking for. Well, he looked and he looked and just about everything he found had deed restrictions. Those that didn't have deed restrictions were much older houses (obviously) that either a) needed a lot of work, b) much further than either one of us wanted to drive to and from work, c) in an undesirable neighborhood, or d) mobile homes, and I don't know if you all have seen what storms can do to mobile homes so that option was definitely out.
So, we found a neighborhood that was as deed restrictive friendly as we could find. Our "community" also does not ban antennas, but they have to meet certain criteria and then you have to get permission. Here, antennas must not extend more than 10' above the roof and be mounted to the rear of the structure. The rule isn't specific as to what "above the roof" means. Is it 10' above the eave of the roof? Or 10' above the peek of the roof? I'm taking it as "peek of the roof." With this is mind, our single story house is right around 20' from floor to roof peek, maybe a little more. I decided on an antenna system and wrote up a proposal. Before I submitted it to the board, I wrote up a letter to my neighbors on each side explaining what I wanted to do and how I intended to do it. One neighbor said nothing. The other claimed he would fight it because he didn't want it bringing his property value down... which we all know is a load of bull. Anyway, I decided to submit the proposal anyway. The president of the board is a deputy for the sheriff's office for which I am also a dispatcher, so I'm hoping that will help my case. In my proposal, I highlighted the positive things that amateur radio can do. With our recent brush with Hurricane Charley, it may help. Especially since I and the deputy who is the president have both been sent down to Hardee County by the Sheriff's Office to assist in relief efforts. He has now seen first hand what a hurricane can do. He's also now seen what amateurs can do. Also, in my case, I planned on going with a SteppIR vertical with the intention of putting it up when I wanted to use it and then take it down when I wasn't, in an attempt to appease the neighbor who objects to the antenna. Besides, my wife and I have decided we want to move to AZ in two years so why bother to do something real permanent? At this point, I'm still waiting to hear back from the board. If I don't hear something soon I'll have to do a follow up. Some deed restrictions state that if you haven't heard anything within a certain time frame that you can take that as an approval. Most deed restrictions don't state how long the board has to react.
On another note, I feel quite fortunate that I married the person I did. She knew full and well before we got married that I was into this hobby. I explained to her that there may come a time when I might want to put up a small tower and beam. She has not objected to this. She realizes this is part of who I am and accepts it.
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RE: Possible Loophole in OTARD
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by WB2WIK on August 30, 2004
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Well, when it comes to real estate and most other things, cost is directly proportional to desirability.
The most desirable places to live in America cost the most. The least desirable places cost the least. Absolutely nothing it responsible for setting prices as they are, except the market.
Also, it's incredibly easy to verify beyond any doubt that restrictive covenants actuall degrade property values, in terms of investment strategy. That is, no matter where you look (interesting data available on line from http://www.realestate.com), in any state, county or even zip code, the properties that rise fastest in value based on actual selling price, when all else is comparable, are those properties that are covenant-free.
Here in my area, the difference can be rather enormous: CC&R properties, on average, increased in value from June 2003-June 2004 by 22.8% in L.A. County. Non-restricted (covenant free) properties in the exact same geographic area increased in value from June 2003-June 2004 by 55.9%. That's more than a two to one difference in market valuation increase, based purely on nothing other than the most desirable properties, from a marketing perspective, are the covenant-free ones.
Do a similar study for your area, or for any area, and you'll find about the same thing.
This is the single best reason to not buy any deed restricted property, unless you simply don't care about return on investment.
<Sigh>
WB2WIK/6
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by W0MT on August 30, 2004
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The cruel truth is that many, if not most, local governments do everything they can do to be sure that all homes within their jurisdiction have HOAs and CC&Rs. Why you ask? Because local governments are virtually always short on money. Without HOAs and CC&Rs, the local police and zoning boards get the phone calls objecting to the neighbors height of grass; junk cars in the front yard; houses painted red with orange shutters and a purple roof; the pink, plastic flamingos lawn ornaments, Ham radio antennas, and so on. Then the cops and zoning boards have to intervene in these neighborhood disputes. This costs money for more cops and for zoning board hearings. And the cops I know HATE to respond to calls like these. It is usual for passions to run sky-high in these matters and whoever is responsible for resolving the dispute gets hated by the losing side.
With HOAs armed with CC&Rs, the local government is off the hook. The issue of dealing with all of these problems gets shifted to the HOAs. As an added benefit for the local governments, many HOAs maintain parks, tennis courts, swimming pools, etc. within the association. The net result is that many functions that used to be the responsibility of local government gets shifted to the HOAs. The HOA collects the tax, I mean HOA fees, and starts to function much like a private government.
This is one reason why in many parts of the country, almost all newly constructed homes have HOAs and CC&Rs. The local government pushes the developer who applies for the permits to develop land to have HOAs and CC&Rs. They also refuse to grant the permits unless the developer builds the infrastructure (storm sewers, roads, sidewalks, curbing, etc.).
And how do you fight city hall?
Robert, W0MT
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by LNXAUTHOR on August 30, 2004
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KD4AC wrote: "I'm in the same situation you're in. I'm over in Hillsborough County. When we wanted to buy a house, I told the wife "NO deed restricted houses" and she had no problem with that. So we contacted a real estate agent and told him what we were looking for. Well, he looked and he looked and just about everything he found had deed restrictions. Those that didn't have deed restrictions were much older houses (obviously) that either a) needed a lot of work, b) much further than either one of us wanted to drive to and from work, c) in an undesirable neighborhood, or d) mobile homes"...
- tks for confirming our experience... yep, we ran into this when looking in Pinellas Park, Seminole, and Largo (our only real choices, as we wanted a 10-minute work commute)...
- i also agree about other comments regarding higher valuation of non-HOA properties - but the real estate market on the Suncoast is *definitely* different than anywhere else i've lived!
- i suppose if i had been able to get the XYL to do a 60-minute commute we would have fared much better - but i lived through that for 12 years on the I-95/I-395 corridor in the DC Metro area - no way!
- so for us, we found a great place close to her work that also allows antennas...
- and besides, if the bands are down, it's only 15 minutes to the beach!
:-)
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by KG4YJR on August 30, 2004
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AVOID, AVOID, AVOID, AVOID any neighborhood whose association's covenant enforcement officers are bored, old, bitter housewives. One of my co-workers tells me frequently of his neighborhood's version of Gladys Kravitz. He got a nasty letter for putting his trash cans out by the curb ten minutes too early a couple of months ago. His neighbor across the street from him got one for changing the wiper blades on his daughter's car while it was parked along the curb because you can't work on your cars outside there. He also says that they fine you $25 after you get three notices for any violation or notice you get written up for. The money collected supposedly goes to a good cause. My guess it's used for attorney fees.
73
Dave
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RE: Possible Loophole in OTARD
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by RADIO123US on August 30, 2004
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I think the way to possibly fight the battle against CC&R's is possibly with the 14th ammendment equal protection clause. If the government is giving special exemptions or "rights" to certain groups (Satellite Owners, and TV stations), then Amateurs should be have the same protection.
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RE: Possible Loophole in OTARD
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by WB2WIK on August 30, 2004
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KG4YJR, you're exactly right.
Problem is, you don't know who might be in charge of the HOA until it's too late; and even if you do know, this can change at any time. Usually the slate of officers of HOAs are "elected" annually, and if the homeowners don't show up or send in a proxy, they don't have a vote.
And in most cases, the HOA board of directors or officers are unpaid positions. And the homeowners get exactly what they pay for, which is nothing, except continuous aggravation. That, plus bills for association fees and dues, of course. Which can also change any old time.
The "$25 fine for changing wiper blades outside where we can see you do it -- and that makes it car service!" is more the norm and not the exception. A friend of mine (not a ham), an engineer at Northrup-Grumman locally who has a beautiful $700K townhome locally, ended up paying more than $30,000 in fines and court costs when he lost a case against his HOA for having prize-winning rosebushes that were too tall, and in violation of the "plantings height restriction" covenant.
Despite the at-first glossy appeal, restricted communities often have far more drawbacks than benefits. There are always other options; problem is, the realtors often don't even know what they are.
WB2WIK/6
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RE: Possible Loophole in OTARD
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by X-WB1AUW on August 30, 2004
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Rule of thumb: you can do anything you want, as long as you are willing to pay for it.
If you want to pay to find out if you can get away installing an antennacccc
Hope you win,
Bob
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RE: Possible Loophole in OTARD
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by KG4YJR on August 30, 2004
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Steve, WB2WIK
Where my co-worker lives is just an average neighborhood, not a country club or exclusive neighborhood. The homes there are around $95,000 - $110,000 and they only have a small playground and pool for amenities. But they do have retired little old ladies and men with binoculars that the residents fear and are even more scared to protest or vote against as they do have a little clique that get's favoritism and double standards but the rest fear retaliation if they complain or vote against them on decisions or campaign to vote them out. In my co-worker's case, his wife insisted they buy in that neighborhood because several of "her" co-workers lived there (they want more people to suffer I guess) and now she regrets not being a little more flexible. There is one thing he says the authorities wimps fear though, he says they won't do or say anything to the baggy pants wearing teenagers that speed through the neighborhood or block traffic while they ride skateboards in the street. They only go after adults for the stupid stuff.
Sorry folks, back to amateur radio. This goes to show how ignorant some of these CC&R warlords can get. When your neighbor needs your support to protect his interests, even though they might not be the same as yours, say the batting cage example, give him your support and down the road you may get his as a return favor.
Goodnight & 73
Dave
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Possible Loophole in OTARD
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by W4LNY on August 30, 2004
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A few points I want to make, first of all in my case when I purchased my home there was no HOA and no covenants, I bought one of the first houses in a new development, the covenants werent even filed with the county clerks office until two months after I purchased my home, the HOA wasnt formed and running for 6 more months after that.Now I knew an HOA was going to be formed by the builder, and when I went to contract, they assured me that Satelite TV and an Amatuer Radio Antenna would not be a problem, I even paid extra money to the builder to wire the coax from every room to the attic with home runs no splitters, specifiacly for Satelite TV, they also hard wired the house for the alarm, but they tried to talk me into a wireless alarm system until I discussed in detail with them about the type of Ham radio work I would be doing from the house, the builder stepped up and had the Alarm hard wired even thought this meant taking down sheet rock they had already finished.They know about all my plans in advance and took my money and assured me my Dish and Antenna would be fine. As Vince KF4LVC pointed out, I took great care to make my antenna as low key as possible.I would also point out that its getting harder and harder to find a home without an HOA, when I lived on Long Island, there were very few HOA's, but two years ago when I moved to the Charlotte NC area, 80% of neighborhoods seem to have HOA's. I have been told Colorado Law requires all new houses built in the state be part of an HOA, as time goes by it becomes harder and harder to find decent places to live that do not have restrictive covenants in many parts of the country. We need to do what we can now to fight for our rights as FCC licensee's to install and maintain our stations in the homes we own. Besides trying to find ways under current law to protect our selves we also need to lobby our congressman to act by passing legislaiton that covers covenants just like PRB protects us from prohibitive bulding codes.73David - W4LNY
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Possible Loophole in OTARD
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by K3GI on August 31, 2004
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My property owner's association is a pain in the you know what. I will avoid like the plague living in a community with a hoa if I ever relocate. That being said, I am also lucky. "Television antennas, including but not limited to, tower and satellite type antennas, shall not be located within the front yard area of a lot." I've got vhf/uhf antennas sprouting all over the roof (my son is also a ham), wire running all through the trees in the yard, and a tower in the back yard for hf. I've been here 22 years and have yet to hear a comment about them.
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RE: Possible Loophole in OTARD
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by KD4AC on August 31, 2004
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"And the cops I know HATE to respond to calls like these."
Well, I don't know what agency serves your community, but where I live, the deputies and police officers don't get involved with this sort of thing. It's purely a civil matter and they stay out of it.
"I have been told Colorado Law requires all new houses built in the state be part of an HOA"
I've heard the same thing. I also read somewhere that the governor of AZ signed a bill stating that any person who purchases a house in a deed restricted neighborhood also signs away their homestead tax exemption. At first, I thought, "What? No way!" But as I thought about it more, it actually seems like a good idea to me. Think about it. People may want to live in a nice, deed restricted neighborhood, but I bet that people aren't willing to sign away a tax break to get it. So, if more and more states did the same thing, I'm willing to bet people would get pretty ticked off and deed restricted communities might become a thing of the past.
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RE: Possible Loophole in OTARD
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by WB2WIK on August 31, 2004
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Well, cops *will* have to respond when municipal ordinances or state statutes are being violated, and that's not a civil matter. One reason we don't have so many CC&Rs around here (in Los Angeles) is because we do have lots of local law, and enforcement, that's in place to protect people from each other and from harmful acts. No need for covenants when the same stuff's already covered by zoning laws: Such as disturbing the peace; groundskeeping and irrigation for fire abatement; conforming seismic shutoffs for gas lines and meters; use of certain highly flame-retardant construction materials; storage of waste materials and relics; and so forth.
While I see new "conforming" neighborhoods that cover this same stuff, again, via CC&Rs, I have to wonder why the hell they would do that. It's ridiculous. The cops are very capable of enforcing local laws, and the courts are very capable of hearing pertinent cases. We surely don't need HOAs mucking things up further.
The single way "we" (hams and others) will elminate restrictive covenants is to simply stop buying homes having them. If we keep buying them, they will never go away, and probably only get worse.
WB2WIK/6
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by KF7CG on September 1, 2004
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There are loopholes running the other way too. It is now part of real-estate law that if the property surrounding yours is bound by a a particlular set of CC&Rs, yours is also. This is because the filing of the CC&Rs to your deed was assumed to be omitted by simply oversight and therefore correctable at any time.
This means that just buying a house without restrictions may not count. None of the neighboring houses may have them either. I wonder how far the definition of surrounding will be pushed? Three sides? Two sides?
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by WB2WIK on September 1, 2004
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KF7CG, I'd like to see that particular written "real estate law."
It's unenforceable. Covenants are private land deed restriction agreements that must be entered into by cognizant parties.
If anyone has ever been slammed with a suit for not adhering to deed restrictions that were not recorded at the time title to subject property was purchased, I'd definitely like to hear about this, with the specifics of the case.
If this were truly enforceable, then the obvious extension would be to charge an unwitting landowner HOA dues for the newly-formed association which didn't exist when he took title.
The only case I can recall where "after the fact" covenants were tried, the landowner countersued the association and the whole case was thrown out of court.
Is there truly a case on record where "after the fact" covenants were enforced?
WB2WIK/6
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by W0MT on September 1, 2004
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Steve,
I hate to be the one to break the news to you but there are HUNDREDS of cases where a property owner is forced to comply with restrictive covenants NOT contained in that property owner's deed.
Generally the facts go like this. A person buys land in a development where all of the houses have a common look or architecture. Most of the properties are subject to restrictive covenants but for some reason (usually oversight), this one has no recorded covenants. The person starts to build a home that does not look like the others and a law suit follows. Court holds that the person should have known and imposes the same restrictive covenants.
And when I say HUNDREDS, you need to understand that these are all in state courts and the recorded case law is for appeals. Given the appellant record is so clear, I am guessing there are THOUSAND of cases where this is the outcome and it is never appealed. Here is one case if you want to go to the local law library and read: Hegna v. Peters, 199 Iowa 259, 201 N.W.803 (1925). There are similar cases in most jurisdictions.
73, Robert W0MT
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by K8MR on September 2, 2004
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A thought from a guy who happily has a tower in a non deed restricted area:
Put up a TV antenna, as big as practical, in as an obvious of a place you can. (Like the peak of your roof.)
Then, after a while, put up an inconspicuious ham antenna elsewhere. A Step-IR vertical would be good.
Will people be so busy looking at the obvious, legal, antenna, that they will miss the other, real antenna?
Of course, only put up something for the ham bands that you can take down easily if they aren't fooled...
73 - Jim K8MR
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RE: Possible Loophole in OTARD
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by WB2WIK on September 2, 2004
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Hi Robert (W0MT):
I thought I'd post this here, as it's of general interest, but I'll also e-mail this to you in case you don't return here to read...
I consulted an attorney friend of mine locally, W6EIJ, regarding exactly what you stated. His response:
"The issue is not whether it should have been recorded, it is whether the purchaser had notice that such was the case. In Hegna v. Peters, the court really hung its hat on the fact that the purchaser had notice that the area was residential, not a business district.* I looked up not only that case, but new cases citing to it. The last one was in 1956! If the sky was truly falling in, I would think he would have found a much newer case. Even I (and I get critized for using obscure cases to make a point) think it is a bit old, and lacks any modern following...."
[Note: (Not Tom's, but mine): Interesting that Tom mentioned this issue. I didn't look up the case, but Tom did, and knew about it, and evidently that case involved using residential property for industrial use. Clearly, that is a very different situation from the subject of our discussion here.]
73
Steve WB2WIK/6
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RE: Possible Loophole in OTARD
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by W0MT on September 3, 2004
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Steve,
You are correct that this is an old case. . . but it is still out there.
In the Hegna case, you are correct that the court said the property owner knew of the restrictive covenants although he denied it. The point is that his property had no covenants and the court said, "Tough, you have to follow them regardless."
In a different case, Shover v. Mermelstein, 93 NJ Eq 57, 114 A 788 (1921), the purchaser of a lot in a subdivision was told by the seller he could erect a two-family house. The lot had no covenants and the other lots in the subdivision had covenants prohibiting two-family dwellings. Here the new owner did NOT know of the restrictive covenants. The court said the purchaser could have asked surrounding owners and therefore should have known. Same outcome as the Hegna case--he had to follow the restrictive covenants.
I dont know why there are not a lot of recent cases on this but my guess is that there are several reasons. As I said earlier, the state court cases are only those on appeal. In other words, these are not trial court cases. Often, once the case law pretty clearly sets the standard, few cases get appealed as the outcome is pretty certain. In fact, the cases often dont even get to the trial court stage because an attorney advises the client that they are probably going to lose if they want to take a position contrary to the case law. Another reason is that with the more modern developments with CC&Rs, developers have legal assistance and they just dont have many instances of forgetting to record the restrictive covenants on all of the affected property.
And I should add that there are cases that go the other way. My general point is that it is not slam-dunk certain that restrictive covenants will not be imposed on a land owner whose property has no covenants. The general test is (1) is there some sort of a general development scheme and (2) does the owner have actual or constructive notice of the scheme. In the Hegna case, the owner had actual notice. In the Shoyer case, the owner had constructive notice.
Tough world out there.
73 Robert W0MT
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by N1XV on September 3, 2004
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I see alot of excuses as to the reason why one did not purchase a property without restrictions. If you truly want to be on the air with any antenna that you want and/or can afford to erect then you would have purchased a house in an area without antenna restrictions,period. No excuses. N1XV-Vaughn in Helena Montana.
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by WB2WIK on September 3, 2004
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N1XV, you're right.
Of course, a lot of people already had homes and then became hams, later, so they couldn't have anticipated the "antenna" requirement. In those cases, I urge them to do what I've done fourteen times now: "Move."
I heard a buddy on the air last night in QSO with somebody else, so I didn't break in, but what he said made tons of sense. It was Don, K4QKY in Kentucky.
He said, "Always keep your home ready for sale in a moment, so if you need to sell it, there's nothing to do except list it for sale." That's incredibly good advice, obviously from someone who's followed it. Another one: "Never sell your home when you *have* to." That's also good advice, from Don.
Following that, I imagine Don's done well in the real estate market.
WB2WIK/6
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by N6XA on September 4, 2004
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We have similar wording in our CC&R's here in Las Vegas. And BTW, they are are ALL exactly the same here when you buy a new home. It is almost impossible to find a new or newer home without CC&R's.
The HOA almost had a kitten when I pointed out that I could put up a 36 inch Data Dish for internet access. While that made me feel good that I could find a loophole in the CC&R's it really didn't mean much since I had no intention of really doing so (to slow for the internet and too ugly for everyone).
However, a couple of homeowner expressed their patriotic sentiments by requesting to put up flagpoles. Now flagpole antennas are nothing new. The HOA approved the flagpoles and even agreed that I could use one for HAM radio as long as there were no visible wires (coax and radial underground where they belong anyway).
Possibly that will help you get on the HF bands. I think a company makes a preassembled flagpole antenna, but forgot their name. Someone elese might help you out on that.
Ed
Good HFing
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RE: Possible Loophole in OTARD
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by N6XA on September 4, 2004
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Dear N1XV, with all respect, not everyone lives in the wide open spaces. In densely populated or growing areas it is often impossible to purchase a home near town where there are no restrictive CC&R's.
Montana is a beautiful state, but it can not employe the rest of the country. Some of us must live in the urban/suburban areas of the country to work. Thus we have little choice over county, city, or HOA restrictions.
Ed
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by AB5XZ on September 7, 2004
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N6XA: A couple of years ago I heard a ham in 7-land say that he was using two phased flagpole antennas and getting great results!
73Tom
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RE: Possible Loophole in OTARD
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by KE1FO on September 8, 2004
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I've seen remarks about HOA's and CC&R's being a problem mostly on "new" homes. My first home in Massachusetts was built in 1963 and had very clear restrictions that limited you to a television antenna mounted close to the roof! My home now in Northern Vermont has CC&Rs as well, and it was built in 1987. CC&R's aren't new - if you're in a "development" they're probably there...unfortunatly.
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