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Author Topic: No HOA's or CCR's here, does having an antenna up "declare" your rights?  (Read 6206 times)
WA2ISE
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Posts: 123




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« on: April 02, 2014, 12:20:32 PM »

Not sure if this even makes any legal sense, aside from grandfathering.  There's no noise about HOAs being established around here.  But if someone thinks about it, I could say "I've had that 2m antenna up on my house for years and you didn't even see it, even though it's clearly visible from the street.  And noone has complained about RFI."   
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WB2WIK
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« Reply #1 on: April 02, 2014, 02:19:57 PM »

If there aren't any deed restrictions (CC&Rs) or HOA By-Laws prohibiting antennas, the only other thing that can is a city/municipal/county ordinance.

If there aren't any stipulations about antennas by ordinance, then there aren't any restrictions.

If there are, then simply having something installed a long time doesn't grant any rights that I know of.

That would be a bit like protesting a speeding ticket because you've been speeding every day on the same street for the past twenty years.  You only need to be caught "once," and you're still guilty. Wink
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AA4PB
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« Reply #2 on: April 02, 2014, 02:46:34 PM »

But if there are no restrictions now an HOA can often add restrictions later on (depends on how their rules are written). If you have an antenna up when they add the restrictions then you are grandfathered. If you don't have an antenna up and decide to do so after the restrictions are in place then you are out of luck. The same goes for government regulation, except that they have to provide reasonable accommodation.

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ONAIR
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« Reply #3 on: April 02, 2014, 09:32:59 PM »

Interesting!  Wondering if anyone already had an antenna up, and then later had issues with a newly organized HOA?
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AA4PB
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« Reply #4 on: April 03, 2014, 05:40:34 AM »

It's more likely that your property is covered by an HOA when you purchase it but they had no rules against antennas. I would think that if there were no HOA or CC&R at all when the property was purchased then your property is not a part of the HOA unless you voluntarily agree to sign on. My brother was in that situation as he had an old farm house. For years he had a couple of pigs, and parked his two tractor trailers on his property. After years a development formed around his property and the new HOA tried to force him to get rid of the pigs and trucks. They took him to court and the judge ruled that his property was grandfathered and the HOA couldn't force him to do anything unless it violated city regulations.

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W0DLM
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Posts: 75




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« Reply #5 on: April 03, 2014, 07:04:26 AM »

Whether or not antennas would be grandfathered will depend entirely on local laws and how the HOA is formed.  Meaning that any blanket statements are at least as likely to be wrong as they are to be right.

Having said that, if there truly is no HOA or CC&Rs then it is most likely (not guaranteed, by any means, but most likely) that you would be able to keep your antenna if these things come along later.  Regardless of the local laws, I would certainly try to make the argument that the antennas should be grandfathered.  The worst that can happen is that you lose the argument.

As was mentioned, if there are local regulations that would prohibit your antenna, then the fact that you haven't been caught yet doesn't really make any difference.

Good luck.
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W0MT
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« Reply #6 on: April 03, 2014, 10:12:16 AM »

But if there are no restrictions now an HOA can often add restrictions later on (depends on how their rules are written). If you have an antenna up when they add the restrictions then you are grandfathered. If you don't have an antenna up and decide to do so after the restrictions are in place then you are out of luck. The same goes for government regulation, except that they have to provide reasonable accommodation.
Maybe! The HOA rules can be written in such a way as to require compliance with them regardless of pre-existing things like antennas. The term "grandfathered" is of dubious value in contract cases.

In the case of changes of building codes, the the "grandfathered" usually has some value. Often when a change in building codes is made and some building that was in compliance becomes non-compliant, no change is required. However, if a new building permit is requested for a non-compliant building, then often ALL non-compliant issues must be brought up to code. An an antenna would probably be treated in the same manner.
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AA4PB
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« Reply #7 on: April 03, 2014, 11:27:21 AM »

The bottom line is that nothing is ever guaranteed unless you are willing to take it to court and get a judge to rule in your favor. I once called for a final inspection on a commercial building. The fire marshal failed the inspection because he wanted an annunciator panel by the front entrance. I showed him that the construction drawings didn't include an annunciator panel and his signature was in the approval block of the drawings. He said it was his prerogative to change his mind and if I wanted an occupancy permit I'd have to have the alarm system modified to include the panel. I suppose we could have won in court but that would have cost more and added more delay in using the building than paying the contractor to redo the alarm - and the fire marshal know that.
 
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KB3VWG
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« Reply #8 on: April 03, 2014, 02:50:13 PM »

Interesting!  Wondering if anyone already had an antenna up, and then later had issues with a newly organized HOA?

HOA's are usually created when land is subdivided and the leftover property is not absorbed by the local government (which they're not obligated to do) or not offered to the local government (in the case of providing private recreation areas for the homeowners to enjoy); then the homeowner consents to the HOA covenant during the contract/deed signing process. I've never heard of a HOA "newly created" from old homes...though, I have seen new homes built in the backyard and woodland around old homes, and the developer formed an HOA (be mindful, the old homes would not automatically become part of the HOA). In most places, it would be easier to from a new town government than to form an HOA (unless, of course, you're already in some municipal/town limits).

To answer the OP's question, if you happened to live in an area that does happen to form a HOA, the easiest way to not be bound by their rules is to not sign anything they give you, then your land will not be a part of the HOA; problem solved!

Now, if the local government passed a law about antennas, that's a different situation altogether; PRB-1 would come into play. Regarding RFI, check out PRB-1 a little more, RFI in and of itself is a valid concern of a local government.

If you're interested in HOAs, here some lite reading (7 pages):
http://object.cato.org/sites/cato.org/files/serials/files/regulation/2004/7/v27n2-5.pdf
The Private Neighborhood
by Robert H. Nelson, University of Maryland

...and some heavier reading (98 pages) - this paper gets into the odd legalities that arise in HOAs (such as: would an heir to a home within an HOA area be bound by the HOA agreement they never consented to, can HOAs discriminate, can they deny services since they're not technically "public services," should they be allowed to hold non-public meetings, etc.):
http://test.smartgrowth.umd.edu/assets/documents/research/nelson_privateneighborhoods_datena.pdf
The Rise of Private Neighborhood Associations: A Constitutional Revolution in Local Government
by Robert H. Nelson, University of Maryland
« Last Edit: April 03, 2014, 02:52:22 PM by KB3VWG » Logged
W0MT
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Posts: 169




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« Reply #9 on: April 03, 2014, 04:18:50 PM »

I read both articles albeit quickly and I found nothing that addressed someone inheriting property subject to CC&Rs. CC&Rs are said to “run with the land.” This means that whoever owns the land is subject to them. Easements also run with the land and there is no way that someone who inherits property can decide not to accept an easement such as one for power or gas lines.

I have never seen anything that ever required the owner to agree to abide with the CC&Rs. I have seen where a prospective buyer must be furnished the CC&Rs and the HOA’s financial statement and bylaws so many days prior to closing and the sale may be canceled by the buyer based on the information furnished. It is normal for the buyer to sign that the material has been furnished but this is not an agreement to the material.
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N4UE
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Posts: 291




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« Reply #10 on: April 03, 2014, 05:02:12 PM »

You need to go back through the threads and 'read' what happened to me. Lost my dream shop/shack and a new very expensive
home due to antennas. My situation had NO restrictions present of any sort. My antenna/tower plans were approved by the County Building Inspector.

Bottom line:

ANYONE can sue ANYONE for ANYTHING. In my case it was me against a mob mentality.
I won the court case, but after death threats, etc, my ex-wife called it quits.

ron
N4UE
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KB3VWG
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Posts: 12




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« Reply #11 on: April 03, 2014, 05:21:07 PM »

I read both articles albeit quickly and I found nothing that addressed someone inheriting property subject to CC&Rs. CC&Rs are said to “run with the land.” This means that whoever owns the land is subject to them. Easements also run with the land and there is no way that someone who inherits property can decide not to accept an easement such as one for power or gas lines.

I have never seen anything that ever required the owner to agree to abide with the CC&Rs.

I never remarked that the paper answered the question; and allow me to make one correction - the document does not talk about inheritance, rather a child being born into an HOA in comparison to being born as a citizen of a government and having never technically 'consented' to the "laws of the land" in either case.

Quote from: page 20 - "Public" and "Private" Ambiguities
If it could be said that the children that are born and brought up in a municipality may never have formally consented to its rules, this is no less true of children born and brought up in a neighborhood association.

Also, I very much agree with your statement above, though I differ in your view about nothing requiring an owner to agree to abide with the CC&Rs. You stated:

I have seen where a prospective buyer must be furnished the CC&Rs and the HOA’s financial statement and bylaws so many days prior to closing and the sale may be canceled by the buyer based on the information furnished. It is normal for the buyer to sign that the material has been furnished but this is not an agreement to the material.

This would mean that someone is obligated to provide the rules to the prospective buyer, and that they have some formal period of time to review the rules and opt to NOT give consent to be governed by their terms. In more detail, this would probably mean that when the buyer sends an offer, the seller's acceptance must be accompanied with a copy of the rules (by some party, maybe the HOA); which, in contract terms, is a counter-offer, OR entrance by some other interested party (i.e the HOA) who is required by legislation or precedent to enter the contract process.
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K1DA
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Posts: 474




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« Reply #12 on: May 09, 2014, 11:21:08 AM »

I read both articles albeit quickly and I found nothing that addressed someone inheriting property subject to CC&Rs. CC&Rs are said to “run with the land.” This means that whoever owns the land is subject to them. Easements also run with the land and there is no way that someone who inherits property can decide not to accept an easement such as one for power or gas lines.

I have never seen anything that ever required the owner to agree to abide with the CC&Rs.

I never remarked that the paper answered the question; and allow me to make one correction - the document does not talk about inheritance, rather a child being born into an HOA in comparison to being born as a citizen of a government and having never technically 'consented' to the "laws of the land" in either case.

Quote from: page 20 - "Public" and "Private" Ambiguities
If it could be said that the children that are born and brought up in a municipality may never have formally consented to its rules, this is no less true of children born and brought up in a neighborhood association.

Also, I very much agree with your statement above, though I differ in your view about nothing requiring an owner to agree to abide with the CC&Rs. You stated:

I have seen where a prospective buyer must be furnished the CC&Rs and the HOA’s financial statement and bylaws so many days prior to closing and the sale may be canceled by the buyer based on the information furnished. It is normal for the buyer to sign that the material has been furnished but this is not an agreement to the material.

This would mean that someone is obligated to provide the rules to the prospective buyer, and that they have some formal period of time to review the rules and opt to NOT give consent to be governed by their terms. In more detail, this would probably mean that when the buyer sends an offer, the seller's acceptance must be accompanied with a copy of the rules (by some party, maybe the HOA); which, in contract terms, is a counter-offer, OR entrance by some other interested party (i.e the HOA) who is required by legislation or precedent to enter the contract process.

Restrictions run with the land, not the person.
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W6OGC
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Posts: 10




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« Reply #13 on: May 11, 2014, 08:42:04 AM »

Conditions, Covenants and Restrictions (CC&Rs) are imposed usually by the owner (developer) recording the CC&Rs in the land records of the county where the property is located, then referring to them in each deed as the lots or units are sold.  The other way is for every property owner in an area can agree to impose the restriction on his or her property, and record that writing in the land records of the county, although I have never seen this done.  The CC&Rs thus imposed are binding on the owners and all subsequent purchasers, who take title subject to those restrictions.  The subsequent purchasers know of the CC&Rs when they search title to the property before buying it.  They are bound by the CC&Rs even if they don't find them, or look, under the doctrine of "constructive notice" which means you have a duty to search the land records and are bound by whatever you would have found if you looked whether you looked or not.  If you do not want to be bound by those CC&Rs, don't buy the property.  If you do buy, you are bound whether you know it or not.

The CC&Rs provide for a Homeowners Association (HOA).  The HOA is often incorporated in the state has officers, by-laws and responsibilities for taking care of the common areas all homeowners have a shared interest in.

Typically, the CC&Rs go on before the homes are built, and certainly before any are sold.

I have seen CC&Rs which provide that before an antenna is built, the plans must be submitted to an Architectural Control Committee or some such name for approval.  Often, if not approved within 30 days, approval is deemed given.  In one case the CC&Rs provided that if the improvement was completed before the Committee acted, the improvement was deemed approved, so the ham very quietly put in the base, got everything ready, submitted his plan on Friday and got the tower and beam up over the weekend.  Voila!  approved!  That's not common!

When I was a Volunteer Counsel of the ARRL 30 years ago, nobody ever came to me before buying a property to get advice about antennas, but lots of them came in crying later that either the City Council or the HOA was messing with their plans.  PRB-1 and its iterations has lessened the City problem, but the HOA/CC&Rs remain.  Caution is advised.
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KA5PIU
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Posts: 446




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« Reply #14 on: June 10, 2014, 12:52:59 PM »

Hello.

Out near the Northwest part of San Antonio there is a Very expensive subdivision.
They have wonderful facilities, a nice golf course, etc.
And they have all sorts of rules, hundreds of rules.
There are 3 old farm houses on adjacent property.
The people in the subdivision wanted the "farm" property "cleaned up".
They wanted a place to take kids, etc.
The judge ruled that this was private property and they had no legal right to be there.
So they put up a fence, explaining that I had no "rights" to their facility.
They gave up when I pointed out that I was never permitted to use any of it.

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