Section 1-A(1) Defines Leasing

Section 1-A(1) defines Leasing as an Owner or the Owner's immediate family giving up "regular, exclusive occupancy" to anyone outside the owner's immediate family in exchange for "any consideration or benefit, including, but not limited to, a fee, service, gratuity or emolument." Section 1-A(2) adds that a residence "may be leased only in its entirety" for periods greater than 6 months and that owners "are strictly prohibited from leasing individual rooms in the Residence."

The issue here is that this definition can be interpreted two different ways. It can be read as the owner giving up regular, exclusive occupancy to another OR as giving up their own regular, exclusive occupancy (i.e. by letting out a single room). The Board has acknowledged this alternate interpretation but has indicated they "are going with their attorney's interpretation" which is giving up use of the entire home to another. They have also stated that they are not willing to change the language to address the ambiguity.

Our concern is that while this Board may interpret it this way, a future board would be able to interpret it in the alternative. If Leasing is defined as the homeowner giving up their own regular, exclusive occupancy, that is if they permit someone to have a portion of their home in exchange for a "fee, service, gratuity, or emolument," then a homeowner would be barred from including room and board as part of the compensation package to a nanny or other caregiver who lives in the home. They could likewise be barred from hosting a foreign exchange student or caring for a foster child (gratuity) or having a roommate (fee) or house sitter (service).

Note that even under the Board's interpretation, a house sitting arrangement is NOT permitted per the terms of the Proposed Deed Restrictions. Hiring a house sitter when you go out of town is giving up occupancy of the entire home to another in exchange for a service, i.e. "Leasing". The proposed restrictions do not permit Leasing for a period of less than 6 months. So you are technically barred from hiring a house sitter - unless you are going on a very long trip!

There is a provision that the Board can make a hardship leasing exception, but do we really want to have to explain our personal troubles and get permission from an HOA board before we can deal with a life issue that might require live-in help?

This Board has made it very clear that it is not their intent to apply the provision so as to bar live-in help, roommates, house sitters, and such. But the question we should be answering is not whether this Board WILL do that, but rather whether a future board COULD.

Homeowners should also be aware, deed restrictions not only give the HOA board the power to enforce, they give other homeowners the right to sue a homeowner directly to enforce the restrictions. Even if the board elects to go with its attorney's interpretation, a neighbor could argue that the alternate interpretation is correct and sue a neighbor for breach of the restrictions. They may not succeed, but it could cost a homeowner thousands of dollars in legal fees personally to debate the correct interpretation of these restrictions.

We maintain that the restrictions should be written so as to be clear and unambiguous, after all they last for eternity (unless overturned by a future vote). There should not be two possible interpretations. There should be one. It is not difficult to write this in a way that is clear and unambiguous, but the Board has refused to do so. One might ask the curious question, why?