[Fr_Chuck]

Yes, in and around many areas, I don't know if they still have them but in metro areas there used to be armed merchant patrols that would police merchant areas. I know of manny communities that are not a city, but have private police forces.
I know of few places that have private police but the police get sworn in by a local police force as some agreement they have

But as for as signing over your rights, the HOA ( or even some housing districts in historical areas) can tell you what color you can paint your home, if you can have any yard decorations.
I know of one where you can not have a pick up truck parked outside the garage, you can not leave your garage door open longer than so many minutes and never over night. Some of the gated communities require even your guests to check with security before they can enter.

But you sign away rights when you get a drivers license, you agree to take a breath test if they request you to. And you can lose your licesne if you refuse, even if you had not had one drink.

[Erbusch]

Maybe I need to get more in dept about the lake. The lake was originally farm land. It had 26 natural springs on the property. In the 1970s the owner saw potential for profit in the land. He dammed up one end of the spring and allowed the basin of his land to fill with water. He created, purposely in the original abstract for all of the land a clause that said that all land owners could decide after 1988 whether they would remain association members. My father bought the property shortly there after in 1991. The land had never been resigned to the association and the abstract clearly states this. The original land owner since then has sold off all of the property. There is no one single property owner, or company, or group that owns the lake. We, the people of the lake, as a collective, own the lake and the association is a representation of 500 families out there. However, there are about 100 that have never signed back into the association. The problem this year is that they are intentionally trying to trick or force us into joining the association. The paperwork they sent us list 5 new rules put forth this year that we must agree to in order to obtain or boating stickers to use the lake. 1.) We agree we have a copy of the rules and fishing book. 2.) We have read and understood the rules 3.) We understand that rules apply to guests as well and they we are responsible and liable. And this is where we are really bothered. 4.) That as condition to granting boating/fishing "privileges" we agree that representatives at any time can board our vessel for inspection and failure to grant permission will result in suspension of our boating/fishing privileges for the season. 5.) That upon violations of any regulations we agree to pay all fines assessed by the association. First of all, #s 4 and 5 are of particular concern. 4 because of the boarding issue and due process and everything that we have already discussed and 5 because we believe that agreeing to this particular rule we are essentially more or less agreeing to become members of the association. This rule does not apply to regulations on water alone, but on the land that we OWN as well. In other words, forcing us to join the association when legally we do not have too. We don't see a problem with any other regulations other than the last 2. We believe that they are trying to force the remaining 100 non association members into the association. Our main point here is that we believe that the creation of this paperwork and these rules are an attempt by the association to force us in. The reason we are afraid of this has nothing to do with the lake but the fact that if we are part of the association we are absolutely forced to obide by their rules both present and future. We don't appreciate the idea of being in that position. It's a vulnerable position and one we hope to avoid. We need to know if they can legally force us off the lake if we do not agree to this paperwork with these new laws, particularly the last 2. Any suggestions are helpful and thank you again for your responses

[Fr_Chuck]

This is different if each of several 100 land owners in their deeds all show claim to a share in the lake ( good and bad since it also makes you liable for law suits from the lake, but that is another story) But if you are by deed part owner of the lake, then I doubt they can force their rules on you If they own in whole the lake it would be different.

[ScottGem]

I would want to see the covenant that setup the association and how deeding was handled. How does your survey and deed read? Do you own the property up to the shoreline or to the middle of the lake or what? What mandate was the association given to protect the property? There are a lot of questions here. What is said about people who opt out of the association? What responsibility or obligations do they have? In a situation like this an association is a good idea, because there are common facilities that need to be tended so everyone should share.

But an association, as it often does, can get too big for its britches and oversteps its bounds or sensibility. The real problem here is clause 4. Its unconstitutional and I don't believe it would survive a court challenge. But to challenge it means violating it getting fined and then going to court over it.
Clause 5 is a concern only if it gives the association the right to impose any fine it sees fit. If there is a schedule of fines, that makes a difference.

I stand by my suggestions to contact a Constitutional Law Professor to get a written opinion or to contact the ACLU.

[LisaB4657]

I am handling a case right now that involves lakeside property. I will explain how the law applies in this case and you can see if it parallels your situation.

My clients own a house and property on a private lake. Their property line ends at the shoreline of the lake. A neighboring property owner owns a portion of the bed of the lake, including that portion where my clients' property ends. My clients have an easement from the neighbor for their deck, which extends from their house (on the property line) out into the bed of the lake.

One part of the lake shore was developed into condos. The condo association owns the bed of the lake in that area. They started a lake association as well and tried to get everyone around the lake to join it. About half of the lakeside property owners are members and the other half are not. The lake association has rules and regs about using the lake but it has been established by law and court cases that they cannot control the use of the lake by non-members. As long as the non-members have access to the lake by deed (such as by owning property on the lake) then they have the right to use the lake without restriction other than state laws. That's because the lake association may own part of the lake bed, but NO ONE OWNS THE WATER.

As long as the property owner has access to the lake over property that is not association property then they can use the lake as they see fit without being subject to association rules. If they can only access the lake via property owned by the association then they have to comply with the association's rules. So the big issue here is how you get to the water.

If you can get to the water without going on association property then the association should not have the right to control your use of the lake. I suggest that you speak to a real estate attorney in your area to confirm these things and then have the attorney start writing letters to get the association off your back.

[ScottGem]

Lisa has come to the rescue here (as she often does) with a very definitive answer.

However, there still remains the caveat of enforcement. You can find local laws that back up what Lisa is saying (that if you have lakefront property, your use of the water is no subject to the association). But if the association tries to fight you in court, they will probably lose but it will get expensive.

There is also another issue. While you may have lakefront property. You may have to use association owned or maintained roads to get to that property and that may have an effect on what Lisa is saying (Lisa?).

[LisaB4657]

There is also another issue. While you may have lakefront property. you may have to use association owned or maintained roads to get to that property and that may have an effect on what Lisa is saying (Lisa?).

If the association owns the roads that they use to get to their property then the type of use will be governed by the documents that grant them access. If the documents only talk about road use and nothing else then they should still have the right to use the lake without being subject to association rules.

[Hundalei]

I do understand that it is a private lake. I have been cottaging on a private lake for my entire life, and family has been there for 100 years. But as I mentioned before Private to me means no public access. Only property owners allowed. That still doesn't give any amount of property owners the right to tell others what rules they have to obey. The only situation I see any of this being reasonable is if one person owned the lake. Than they could be held liable for what people are doing on their property and would be able to set rules to prevent that. But that is obviously not the case here as there are multiple property owners.

A host can be held responsible for their guests to a certain point, but not criminally or financially. Up here we even have it in our seatbelt laws. Anyone over the age of 16 is responsible for buckling themselves up, if they do not, they get a ticket, not the driver of the car. The reason?? People cannot be held responsible for the actions & decisions of other grown adults.

And oh my goodness if Security guards have less limitations and more ability to control than the police I am scared of wherever that is true.

[froggy7]

A host can be held responsible for their guests to a certain point, but not criminally or financially. Up here we even have it in our seatbelt laws. Anyone over the age of 16 is responsible for buckling themselves up, if they do not, they get a ticket, not the driver of the car. The reason??? People cannot be held responsible for the actions & decisions of other grown adults.

In the US, a host can be held financially responsible for the actions of their guests. Most common example is if you have a party, serve alcohol, and someone drives drunk home from that party and gets in an accident (especially one involving an innocent third party), that person can sue the host for not cutting the person off before they got drunk, and for allowing the drunk person to leave the party in that state. And yes, car drivers can be ticketed if their passengers do not buckle up.

[ScottGem]

The only situation I see any of this being reasonable is if one person owned the lake.

A host can be held responsible for their guests to a certain point, but not criminally or financially.

And oh my goodness if Security guards have less limitations and more ability to control than the police I am scared of wherever that is true.

An association is a legal entity. If the association owned the lake it would be the same as if a single individual did. You live in a town, the town sets laws like an anti-littering law. You are required to abide by that law by virtue of your residing within the town. You pay taxes to the town which goes towards paying for police officers to enforce the law. What you are missing is that a HOA has very little difference between that situation and a town. As long as the HOA is a recognized organization then they can levy and collect dues (taxes) and make laws governing use of their facilities.

If a homeowner (or town resident) doesn't like it they can move, elect different board members (town officials), file suit against the HOA or run for office themselves.

A host can certainly be made responsible for guests, I believe Canada has similar laws to what we have in regards to serving alcohol to a guest and being responsible for their actions.

Who said that security personnel have less limitations and more control? Security personnel simply enforce the rules. They are a hired police force just like the ones the town hires.

[Hundalei]

Aaah everything is so different in the US. Yes a person can be held responsible if a guest leaves their party drunk, but only if that host purchased & served them the booze, and most of us have personal liability clauses in our home insurance that protect us. If your throwing a big party like a wedding you get extra insurance to cover your butt. What you do not do is sign an agreement with all your neighbours (notice the u) that if you or guest make any noise/drink/disturb any of them that you will pay them a fine!

Anyway It seems that Lisa hit the nail on the head that I have been trying to hit. As long as you own property that has lakefront, you have right to use the lake however you please, within the law. No one owns the water. You are not your brother's keeper.

[Hundalei]

The Police have their limitations. That's why private communities employ private security. This is not uncommon, at least in the states. There is nothing wrong in that. And I see nothing wrong in a host being responsiblke for his guests.

To answer the question about who said that Security guards had more freedoms and less limitations than police.

[ballengerb1]

Did I miss it or have we never heard the answer to who owns the lake? I've read a lot of this discussion and everyone is entitled to his opinion but a HOA has way more authority than Hundalei thinks and it doesn't matter what country. I think Scott pointed out early on how a developer buys property, dams up a steam and creates covenants. Those covenants are laws and they are approved by the local or state government. My association has their own building code and enforcement department above and beyond the county building department. We have the right and legal authoority to approve ot deny builing permits and plans. Judy pointed out its pretty much like a condo board, they have legal control over many of the things folks are calling personal freedom or rights. You chose to join in or not but once you are in a HOA you have given up some freedoms.

[Hundalei]

Well sorry but that is not my experience. On this side of the border the township (municipal government- which is elected!) sets the rules on building, when where and how, they set the bylaws, and the police patrol the lakes not security guards. If it were any other way I would leave. There are lakes throughout the province that have been specifically dedicated by the townships as boat free lakes, power free lakes (everyone on solar power) etc. The key though is that those rules for those lakes are set in place by government, for government owned lakes. Anyone looking for that lifestyle can go to the township find out about one of these "green" lakes and buy the property from the government. It is not an HOA or POA setting these rules. It is the government.

Ballengerb1 - You are talking about developers and developments and the rules that they set. Also about condo boards where hundreds of people can be sharing a building. Not rules for privately owned properties with individual's owning individual building's.

Also no I do not believe we have heard who actually owns the lake.

[ballengerb1]

Until we know who owns the lake it is impossible to determine a final answer, so thanks for clearing that up. I own lake property and sit as a member of the HOA so I have years of direct experience. The HOA is very similar to an incorporated city, and like cities they can make laws, hire security and levy fines. I think you may not fully see the authority of a HOA or city, they can make rules for private property. If you live in a city I think your city government has established rules regarding your private property such as zoning nad building code, is this not true for you?

[Hundalei]

I do live in a city, and our elected government officials make our rules. I cottage in Muskoka and also have years of direct experience. 25 years of my own. My mother has been Membership chairman and Treasurer for 40 years, my father has been president for 20 years out of the past 40. My grandfather was president for as many years in his day, and my great grandfather started the association. I hope that outlines my POA experience enough for people to understand that what I am saying is what happens up here.

The HOA's & POA's here can only provide guidelines. Generally a lake association is to help with environmental stewardship programs, keeping the lakes clean, water testing, educating the members about pollution and environmental health of the lake, providing info on safe boating & swimming and organizing community events for everyone to come & enjoy & get to know each other. They cannot turn their guidelines into law especially regarding boating, building, or conduct of guests. Those laws are set in place and enforced by the government and police. Are your POA's for profit organizations?? Everyone's referring to them as a legal entity when I am used to them being a group of volunteers.

I'm of the opinion that all POA's should spend a lot more time on the environmentnd and let the cops deal with the rowdies & improper boat users.

[ballengerb1]

I agree with your last sentence 100% and that's why I ran for board position. I wish Judy would come back and explain things from a lawyer's point. I know this will sound argumentative but it is not, HOA can make guidelines if they want but they have legal authority to create rules, regulations and laws for the common properties as well as private properties. You live in a city and the lected officials make rules and laws,how is this not exactly like a HOA. We are elected officials and we make laws. I agree we should do more environmental regulating but we are finding that people who pollute the lake don't follow rules.

[Hundalei]

I guess how a city is different from an HOA up here is that the HOA are volunteers, not for profit, not incorporated, not paid, etc. Also the HOA does not provide services like a city would - water, sewage, power, garbage pickup, mail delivery property taxes etc. This is where I see the difference. HOA should be there to help guide the homeowner's to a healthy happy life on the lake. The lake is already in a township with a government and police that have set rules. Why exactly is another one needed to do the same thing? Lobby the government and have the laws changed, why does the association need to take their place as the "enforcers".

[ScottGem]

First, When I said the police have limitations, I was referring to manpower limitations. The police, all over the world, are less concerned with preventing crime then with punishing law breakers. Its just a fact of life in a non police state. Private security guards in private development are just the opposite. They are more concerned with preventing problems then catching criminals.

The point you seemingly fail to grasp here is that an HOA or a POA is, in effect, a government. They have elected officials, they have a "constitution", they have rules that govern the use of the property they oversee. Unless they abuse the power they have, I don't see why you are so adamantly opposed to them. I'm not a big fan of them, myself. But having spent many years in a Co-op complex where my mother spent time on the Board of Directors I am familiar with both the good and bad. That HOAs/POAs do serve a purpose. Sometimes that purpose is greatly needed.

I wonder how much experience you have with HOAs/POAs, because I can't imagine they would be as hamstrung as you claim. As ballenger said, at least in the US, they can have the power of a small local govt. While most board members are volunteers, the HOA may provide a number of services like water/sewer, grounds maintenance, road paving, power, garbage pickup and more.

As to WHY they need to exist, is because the town can't provide the level of services they want. It may be cheaper and most likely faster for a HOA to fix its own potholes then depend on the town. In a large development, a water/sewer district may have been created. During the big blackout in NYC back in the 60s, my Co-op had power because we had our own generating plant. So, the HOA provides a level of service, especially in a luxury community, that residents are willing to pay for.

[Erbusch]

Lisa that was a good post. That was what we have been told before by attorneys and always believed as well about the water not being owned by anyone. However, I myself contacted the Department of Natural Resources(DNR) where I live to find out whose water it was and who governed it. They answered my by saying that it is a private lake, owned by the association, and that they govern it. However, at a sports show that we have gone to another DNR official told us that very same thing that you posted. That the water is owned by the state. The land beneath may be owned but the water is owned by the state. As far a driving to the land we own the roads were just county roads, however this last year the association gathered money to have the roads made nicer with chip and seal to stop the dust. I don't know how or why they would do that if they didn't own the roads. I think they got us there.