On Fri, 16 Mar 2007 13:39:15 CST, Cecil Moore
wrote:

Legally, it is not a contract unless you agree to it.
What would happen if you simply crossed out the antenna
restrictions clause before signing the contract?

Both the contract and state law says that you agree to all recorded
CC&Rs on file. Usually one of the CC&Rs is that you will comply with
HOA regulations. An individual buyer cannot modify such restrictions
unilaterally. There may - or may not - be a provision for modifying
them spelled out in the CC&Rs or HOA Regulations themselves, but that
usually requires a unanimous or super-majority vote of all those to
whom the restriction applies (lots of luck). The only other way is
that some states permit a homeowner to sue for a declaration that the
restriction is unreasonable and therefore unenforceable, but the
burden of proving unreasonableness is very high and is on the
homeowner seeking relief.
--

73 de K2ASP - Phil Kane
ARRL Volunteer Counsel

email: k2asp [at] arrl [dot] net

Covenants, Conditions, AND Restrictions = CC & R's, not CCNR's.

No, I don't think the Homeowner's Association is going to agree to a crossed
out antenna restriction, even if the seller does. The seller does not
represent the HOA. The HOA, however, *may* grant an exception if requested.

N7SO

On Mar 10, 11:12 am, Cecil Moore wrote:
KC4UAI wrote:
This is important to me because I live in a deed restricted community
with a very picky HOA.

Did you previously agree to the restrictions?
If so, it is likely a legally enforceable contract
between you and the other party.

In all fairness, Yes and no. Did I know about the restrictions? Yes,
however, unless I had asked about antennas, the only thing I would
have been told was that there was a HOA and they collected dues to
support the community pool. But, I really had no other choice at the
time and don't really have one now. There simply are no similar
houses in the area that would not have CCNRs where I could relocate
to.

The problem here is that the CCNR's are not a contract between me and
the HOA per-say, but an agreement with every other lot owner in the
subdivision. This means I could go the the HOA and get an agreement
to alter the CCNRs but my neighbor could still choose to enforce the
CCNRs himself even if the HOA declined. The only way to change the
CCNR's is to get *every* party of the contract (all 250+ lot owners)
to agree. My only real option is a federal rule similar to PRB-1 and
what it does for broadcast and data services. (or wining the lottery
or finding some non-existent house w/o CCNR's that the XYL and I can
live with..)

-= Bob =-

On Mar 17, 12:12�am, "KC4UAI" wrote:
On Mar 10, 11:12 am, Cecil Moore wrote:

KC4UAI wrote:
This is important to me because I live in a deed restricted community
with a very picky HOA.

Did you previously agree to the restrictions?
If so, it is likely a legally enforceable contract
between you and the other party.

In all fairness, Yes and no. *Did I know about the restrictions? *Yes,
however, unless I had asked about antennas, the only thing I would
have been told was that there was a HOA and they collected dues to
support the community pool. *But, I really had no other choice at the
time and don't really have one now. *There simply are no similar
houses in the area that would not have CCNRs where I could relocate
to.

Which is the textbook definition of a "contract of adhesion",
IMHO.

The problem here is that the CCNR's are not a contract between me and
the HOA per-say, but an agreement with every other lot owner in the
subdivision. *This means I could go the the HOA and get an agreement
to alter the CCNRs but my neighbor could still choose to enforce the
CCNRs himself even if the HOA declined. *The only way to change the
CCNR's is to get *every* party of the contract (all 250+ lot owners)
to agree. *

Another way of making them practically unchangeable.

My only real option is a federal rule similar to PRB-1 and
what it does for broadcast and data services. (or wining the lottery
or finding some non-existent house w/o CCNR's that the XYL and I can
live with..)

This is where real estate differs from other purchases IMHO.
Unlike almost everything else, RE is in limited supply and not
portable. They're not making much more of it, either. Plus you cannot
buy what isn't for sale.

Most of all, RE is often a joint purchase that affects many
people, rather than just one. Getting family agreement is
the reality of most modern families.

KC4UAI does have some possible options besides those
listed:

1) Watch the RE ads and websites looking for a unrestricted
house - and be ready to jump on it if on does appear.

2) Look for brand-new developments, and offer to buy only
if the developer (who almost always is the one who adds
the restrictions) does not include the anti-antenna CC&Rs
on the house. It probably will not have an effect right
away, but after a while the developers might get the
message that they are losing sales because of the restrictions.

3) Save up for the dream house out beyond the restrictions.

4) Figure out ways to get a ruling like the OTARD one for
amateur antennas.

73 de Jim, N2EY

KC4UAI wrote:
There simply are no similar
houses in the area that would not have CCNRs where I could relocate
to.

CC&Rs are a part of the price one pays for a house
and I, for one, am not willing to pay a price that
prohibits amateur radio antennas. That price is
just too high.
--
73, Cecil http://www.w5dxp.com

In article ,
Phil Kane wrote:

On Sat, 10 Mar 2007 10:12:14 CST, Cecil Moore
wrote:

Did you previously agree to the restrictions?
If so, it is likely a legally enforceable contract
between you and the other party.

Cecil, look up the term "contract of adhesion" in a legal text on
contracts. It is a "take it or leave it" situation where there is no
real bargaining.

In California, where I practice state law, a deed restriction or HOA
regulation can be declared unenforceable if it is found to be
unreasonable but the burden of proof of unreasonableness is on the
homeowner seeking relief.
--

As I understand Washington (state) law, the same is true here, plus if
the regulation hasn't been enforced in years, or has been "selectively"
enforced.

Except for the race restriction found in some old CCNRs

--
--------------------------------------------------------
Personal e-mail is the n7bsn but at amsat.org
This posting address is a spam-trap and seldom read
RV and Camping FAQ can be found at
http://www.ralphandellen.us/rv

On Sat, 17 Mar 2007 10:59:58 CST, Ralph E Lindberg
wrote:

As I understand Washington (state) law, the same is true here, plus if
the regulation hasn't been enforced in years, or has been "selectively"
enforced.

Except for the race restriction found in some old CCNRs

That was thrown out by the Supreme Court of the United States in the
landmark case _Shelley v Kraemer_ that everyone studies in
Constitutional Law classes. The SCOTUS declared that a state court
enforcing that restriction made it a state action and such
discrimination was against Federal law, making that contract term
unenforceable.

We tried using that same approach to have PRB-1 apply via the
back-door in _Hotz v Rich_. a mid-1990s CC&R case in California, but
the California Court of Appeal shot us down, claiming that problems
with amateur radio antennas did not reach the same level of public
policy that racial discrimination did.
--
Phil Kane
Beaverton, OR

On Mar 17, 9:43 am, wrote:
2) Look for brand-new developments, and offer to buy only
if the developer (who almost always is the one who adds
the restrictions) does not include the anti-antenna CC&Rs
on the house. It probably will not have an effect right
away, but after a while the developers might get the
message that they are losing sales because of the restrictions.


It's an idea, but there are pitfalls here. Having a developer wave or
change the CC&R's is an option, but only if he actually can. Assuming
that the developer actually owns the land (all of it) and can make
changes to the restrictions for you, how many will? Remember there
are only about 600K of us nation wide, not a large percentage of the
market there. I'll bet that even if we all did this, any single
developer would only see this once in a blue moon and making changes
in the boiler plate CC&R's would not be done.

I'd also be afraid that the developer would try to give you a "waver
letter" saying that the specific restriction in question didn't apply
to you, but that's about as useful as the paper it's printed on once
the development passes from developer control to HOA control. They
wouldn't be bound by this "agreement" unless it's legally recorded on
your title (and very likely on everybody else's titles as well.)

About the only real option here (Apart from joining the HOA Board and
bribing the rest of the voting members to get a temporary exception
just for me) is to save up my pennies and move to the sticks once I
retire in 20+ years. In the mean time I'm stuck with what I can hide
in the attic of my single story home which is full of HVAC equipment,
electrical, alarm, and phone wiring and Christmas decorations.

-= bob =-

On Mar 17, 11:01 am, Cecil Moore wrote:
KC4UAI wrote:
There simply are no similar
houses in the area that would not have CCNRs where I could relocate
to.

CC&Rs are a part of the price one pays for a house
and I, for one, am not willing to pay a price that
prohibits amateur radio antennas. That price is
just too high.

But you may have the option to choose a house without them. I don't
feel that I do at this point. It's not within my means within
reasonable commute from where I work.

I guess this doesn't have too much traction with the ham radio folks
doe to the demographics involved. The Average ham is older than I am,
with more options both financially and geographically than I have.
They are more likely to be established in situations where they are
not effected by deed restrictions, or have better options than I do.

That doesn't mean that this issue is not important. I believe that it
is very important to the future of the amateur radio service, right up
there with defending the spectrum we have if not directly related to
this issue.

-= bob =-

KC4UAI wrote:
But you may have the option to choose a house without them. I don't
feel that I do at this point. It's not within my means within
reasonable commute from where I work.

When I lived in AZ, I chose a two hour per day commute
rather than antenna restrictions. Heck, I got in a lot
of operating time during that two hours per day.
--
73, Cecil http://www.w5dxp.com