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A couple plays on a pickleball court
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Can an HOA Stop a Private Pickleball Court?

A community with large lots and an HOA has a buyer who wants to install pickleball courts. Other owners hope to stop them but without a specific rule to do so.

WEST PALM BEACH, Fla. – Question: I live in a 41-home neighborhood governed by an HOA (homeowner’s association). We have a home that sits on a one-acre lot that is for sale. The potential buyer would like to install two pickleball courts in the backyard that would fit and be within our setback guidelines.

Community members do not want this due to the noise and traffic it will generate. (I am assuming they want to build two courts so that they can hold public matches governed by the official local rules).

There are no rules in our covenants prohibiting this. We do have mention of noise and landscaping. Do we have recourse without setting ourselves up for a lawsuit regarding inhibiting the sale of the home? – Signed, M.S.

Answer: Pickleball is one of the hottest topics in condos and HOAs these days! I know of several communities that are converting one or more of their tennis or basketball courts to pickleball courts.

First, I think we need to separate the sale of the home from the construction of pickleball courts. They really are two separate issues unless the buyer is conditioning the sale on pre-approval of the courts. This person could reasonably buy the home and still be prohibited from building pickleball courts if that would violate your covenants or rules.

The vast majority of HOAs have language granting the board authority to govern and approve architectural modifications through published architectural controls. Are there no restrictions at all in your current architectural rules that might govern a pickleball court? Something dealing with accessory structures, perhaps, or even tennis courts or other recreational additions?

If you truly have nothing to go on, has the board considered very quickly passing architectural controls that would govern pickleball courts and their use? Rules like this typically can be passed by a board on fourteen days’ notice, and they would become enforceable almost immediately.

You are describing a prospective buyer – it’s nearly impossible that they would have both closed on their home and begun construction on a pickleball court before those rules could be implemented. There certainly could be things not contained in your letter that would complicate that approach, but I think that’s the first thing to discuss with the association’s attorney.

Without that, and based on the language that you sent, you have very little to go by.

Your covenants restrict business uses, but unless this person is charging people to use their pickleball courts, that wouldn’t apply (I don’t think holding free, voluntary tournaments would constitute a “business” use). That leaves you with only a potential nuisance claim, but of course at this point you are just assuming how this person would use their pickleball courts. It could be they love pickleball and love having a normal number of friends over to play, sometimes using two courts at a time – and that tournaments are not even in the picture.

Also, remember that board-made rules are an excellent tool for curbing unwanted behaviors. That is, even if these people build two pickleball courts, that doesn’t mean they can use them any way they like. For example, you can restrict the number of guests who can visit a single home at any given time (perhaps allowing a large gathering a certain number of times per year to accommodate ordinary family events but restricting it enough that it would preclude weekly or monthly pickleball tournaments). Or you could restrict street parking in ways that would make holding a public tournament impractical.

The board can get creative, but there are certainly ways it can restrict nuisance behavior through well-crafted rules.

Without taking those steps, you are effectively left with nothing but a rule prohibiting general nuisances, and I would hate to rely on that to curb occasional large gatherings. Yes, they create traffic, and can create large amounts of noise, but it’s transitory – eventually the guests leave, and the games stop. I think the HOA would have a difficult time establishing a nuisance claim. You would have a much stronger chance of curbing the unwanted behavior by either passing architectural controls that would prohibit or limit the construction of the pickleball courts, or instead passing rules that are directly intended to limit the feared behavior.

Ryan Poliakoff, a partner at Backer Aboud Poliakoff & Foelster, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of “New Neighborhoods – The Consumer’s Guide to Condominium, Co-Op and HOA Living.”

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