Lack of Restrictions

I was just elected HOA president and I was reviewing the bylaws and Declaration of Restrictions for our community. I found their are very little restrictions listed. The HOA has no control over color of homes, fences, landscaping, sheds, trees, and lots of other important items. The only thing I can find in there is parking, right of ways, pets... that's about it. All past boards have been enforcing rules that don't exist. People have been submitting paint color, landscaping projects and other things to the board and the board has been approving or denying their request. On what grounds I have no idea.

What to do? I would love to get a few basics restrictions approved. But I think it takes a 100% agreement with the homeowners. I can't see that ever happening.

Any suggestions?

Thanks,
Forrest

Forrest:
Rather than worry about the past, you should get a group of volunteers to put together architectural rules and regulations, then send it out to the community for comments. You actually have a wonderful opportunity to build community by including everyone in this endeavor.
Jeanne

Hi Forrest. Congratulations and thank you for stepping forward to serve on your Board. There are more governing documents that affect an HOA then just those two.

Various Federal laws
Chapter 47F: North Carolina Planned Community Act.
Chapter 55A North Carolina Nonprofit Corporation Act
Your Articles of Incorporation - which created the Corporation known as your HOA
Your Declaration of Restrictions
Your Bylaws
Policy Resolutions - which are created by the Board

You should read and study all of them.

Typically rules apply to the common areas and guidelines are established to standardize what changes the association will approve or disapprove.


Usually the Declaration of Restrictions have minimal restrictions but they are stated in broad language that typically need clarification by the Board (hence the policy resolutions).

I suspect that your Governing documents has something that says changes must be approved by the Association. Since there is typically little else specified most Associations develop guidelines to establish policies and standardization on what changes will or won't be approved.


With the expectation that your members are required to request approval for changes, this is where those type of guidelines (controls) would be established.

If your members do not require association approval then you are correct in your statement that the Association has no controls over the items you listed.


I expect that these would be rules for the common areas.


Like what rules? Is it possible that the rules do exist but aren't well published?

If your association does not have any written guidelines on what will or won't be approved when a member asks for approval to change something on their lot then each Board can set what ever standards they desire. Basically, it would boil down to the personal taste of the individuals doing the approving.


If you have no guidelines I would recommend the following:

FIRST - Read your governing documents to ensure that the Association has approval authority on any external or internal changes to individual lots. If they do then:

1) form a committee of homeowners to review existing State laws, past approvals and past minutes of Board meetings to see what precedents have been established and make recommendations on guidelines.
2) Board should review and make changes to the guideline proposal
3) Hold a meeting of the general membership to get feedback on the proposed guidelines.
4) Board should review and make changes based on feedback.
5) Send the guidelines to the Association for review and advise
6) Board should review and make changes based on legal review and advise
7) Board should then adopt the guidelines as a policy resolution, print copies (publish) and give a copy to every lot and include them as part of the governing documents given to new members.

If the Association does not have that authority you will need to amend the Declaration of Restrictions to give the Association that authority.

Personally I believe that any guidelines should benefit the community and not any one persons individual taste. The guidelines should be minimal and generalized enough to allow for changes in technology, materials or cost. Example: Saying railings shall be painted gloss black is fine. Saying Paint must be Manufacture Name, Pant Brand, color doesn't allow for things like the manufacturer going out of business or discontinuing that color or color matching to a different manufacturers brand.

Take the time to go over all the documents the Association has. Review past minutes and other documents the secretary has but might be misfiled to learn what documentation you have to show what has been established. You might also want to contact your Associations attorney and see if he has a copy you might not have (if records are missing).

Tim

Hi Forrest:

Tim is a tough act to follow on these posts because he offers great information.

I just wanted to clarify your initial statement regarding 100% homeowner agreement. You need to check your governing documents to make sure what is needed to amend. Generally this is something to the effect of 2/3 majority of homeowners or 67% of homeowners, or some other similar language. If they do state 100% then we need to check the state statutes as this percentage is virtually impossible to obtain, so many states have lowered the percentages required to amend and which could supersede your HOA documents.

Forrest's HOA may also be under the jursidiction of a master HOA, OR this a brand new HOA.

I don't see how a board could approve, much less enforce, phantom CCRs or regulations or rules.

They need to be listed SOMEWHERE. Check the documents from the developer, too.

Forrest

There might well be some controls in place that were not enforced and/or never clarified. As an example of house color, there might well be vague statement(s) like saying any changes, must meet community standards (and that can be a heck of an arguement) but that means the control over house color is there versus try and list colors.

Do not try and force new rules down peoples throat before you look closely to see if the "controls" are already there in the HOA documents.

Hi Forrest:

Want to make sure I am understanding your statement. Do you have Declaration of CCR's and does the document make any statements for amending? You referenced voting requirements being in the By-Laws so I want to insure if you have separate documents or is everything combined in one document?

My last HOA CC&R's said 75% of homeowners was a quorum and it was near impossible to achieve. A "group" effort was mounted to get the 75% to agree to a change to 66% based on the fact that 66% was enough to assure a "minority" could not take control/make changes.

As a result of the "group" effort, it was changed.

Bottom line is if you are on the "right/best" side, changes can be made.

Sorry,

We have little to no covenants...

What's in the covenants? Wall, Fences, Hedges, Pets, Outbuildings and yard signs.... That's it...

So past boards have used the Nuisances and Unsightly clause in our covenants to enforce things. (which seems crazy... and non-enforceable... They stated that since they have been making rulings it has formed a standard to enforce future rulings.

There is nothing about yards, paint colors, RV's, trailers, Rotten wood, parked cars... and other stuff I could only dream about...

Forrest

My neighborhood was formed in 1989 and our bylaws and covenants have never been amended. We have no documentation older than 3 years.

Anther issue...
The board members are elected for 2 year terms... but the bylaws state 3 years. Someone remembers a while back they changed it... but no documentation to prove it. It's crazy.

Hi Forrest:

We still need to know answers to the following:

1. Exact title on all your documents.
2. Exactly which document title has amendment provision.
3. Are all documents filed with county records and if not which ones are filed.
4. What document(s) are referenced on your property Warranty Deed.

Also, have you checked with your County Records to see if there are any prior documents on file? Generally most have a website where you can search documents and just enter your association name. If they do not have a website, then I recommend a trip to the County Records and have someone help insure you have copies of all documents pertaining to your association.