By: Laurie F. Masotto, Esq. (originally published in Spring 1999)
Basketball hoops often evoke strong emotions and heated battles within a common interest development, between two teams: those who want to play roundball at home, and those who do not want their community to become an obstacle course of hoops and players. The Association, as the often reluctant referee, is expected to make the call as to whether hoops are allowed, and if so, under what conditions. If all of this is cause for association leaders go on strike because they aren’t getting paid enough to play this game, there is hope. Here are some suggestions to play clean without fouling out:
I. The Rules of the Game.
First, check the CC&Rs, as to restrictions on hoops. They may be entirely prohibited, or they may be allowed depending on the type, location, color, and “permanent” nature. The Association should be knowledgeable about, and enforce, any such restrictions. Even though certain members may not like what the CC&Rs say, they are enforceable if in recorded CC&Rs, pursuant to Nahrstedt v. Lakeside Village Condominium Association.(1994) 8 Cal. 4th 361. The Association can determine, with assistance of its legal counsel, however, if the restrictions leave any room for adopting rules to supplement the CC&Rs, or whether the Association may wish to solicit membership approval of a change to the CC&Rs.
II. The Fan Club.
If the Board desires to propose a change or make additional rules, it should solicit volunteers from the community to provide ideas on what the rules should be. Have persons from each “camp” participate, with the goal of striking a balance of the interests of both teams. Survey similar types of communities to see what has worked elsewhere. Have the committee consider policy as to the following areas of concern:
– Does the community lend itself to allowing them? In a cluster type building with common courtyard parking, the potential for interference with vehicles, nuisance due to noise, and damage to property owned in common, and issues as to storage are more problematic, than where the hoop is above a driveway to a single residence maintained by the owner.
– Location. Freestanding backboards on permanent poles in the front yard have generally not been favored, as they are viewed as an eyesore and detract from curb appeal. Those mounted above the driveway, or in the side or backyard are likely to be acceptable if they are properly maintained, painted a color which blends and harmonizes with colors of the home. There also should be express rules as to where portable hoops, if permitted, shall be located, i.e. not on the street or sidewalk, restricted to the driveway. In addition, the rules should be specific about location of play, i.e limited to driveway. Local government typically will not permit stationary items such as hoops to be placed in the public street. The Association may indirectly control this by restricting the location to on the lot, i.e. driveways.
– Architectural Approval. As with any other exterior change, the rules should clearly reflect the requirement that any proposed addition of a basketball hoop go through the normal channels of architectural approval as with other exterior changes. The question arises as to whether a portable type hoop is an “improvement” subject to approval. Since most types of standard portable backboards (other than the toddler size toy hoops) are heavy and difficult to move, and it is appropriate for the Association to adopt guidelines requiring prior approval and outlining the conditions on which the portable hoops will be approved.
– Hours of Play. Noise is often a complaint that discourages persons from wanting hoops. In the case of Schild v. Rubin, a Court of Appeal held that ordinary neighborhood noise is a reasonable and expected part of living in a community, including noise from basketball play, and does not generally constitute a nuisance. To balance the interests of all members, the association should consider restricting hours of play, e.g.. no earlier than 9:00 a.m., and no later than sunset or 7:00 p.m., whichever is earlier.
– Lighting/Painting Restrictions. The rules may prohibit or restrict additional lighting from being installed by the owner for basketball play, and prohibit painting or drawing of lines on driveways and streets outlining playing boundaries, to protect the aesthetics of the community.
– Maintenance. The rules should include specific maintenance guidelines, such as the requirement to keep the backboard and related equipment painted and in good repair.
– Storage. The rules may provide that portable hoops shall be stored, for instance on the side of the home, when not in use. “Use” can be narrowly or broadly defined, such as at the end of a weekend, rather than moving the item at the end of each day.
– Enforcement. The rules should specifically provide the consequences for failing to abide by the rules, such as possible special assessments and removal/withdrawal of approval, and should specifically provide that any damage to the common area shall be charged to the owner, and may be collected by way of a lien. Members are responsible to ensure their tenants, family members, guests and other occupants of their home comply.
III. Fair Play.
Regardless of what policy exists or changes that are made, it should be made clear of what is expected of the membership. With a clear policy in place, the Association can then enforce it.
IV. Fouls. If a member fails to abide by the policy, the Association should follow its enforcement procedure. Such disputes are appropriate for mediation or arbitration, if the Association’s internal enforcement mechanisms fail to resolve the matter. By attempting these efforts first, the chances of having to get involved in a full “court” press may be reduced, if not eliminated. In this way, all sides can be winners.