By Laws vs deed restrictions

Started by LindaC3 • 8 replies • 3642 views

💬 Join us to post & get advice from 50,000 HOA & Condo leaders.

⚡ Takes 30 seconds

Already a member? Log in

LindaC3 (Florida)
Posts: 526

Posted:

Just a quickie after a horrific board meeting today ---- What supercedes what ?? Do the By Laws supercede the Deed Restrictions or vice versa ??? Thanks Bunches Linda c

RogerB (Colorado)
Posts: 5,067

Posted:

Linda, in order the HOA documents from highest to lowest are:
Plat
Declaration
Articles of Incorporation
By-laws
Rules and Regulations

LindaC3 (Florida)
Posts: 526

Posted:

Okay got that-- now next question....If it states in the By Laws that any amendments to these By Laws will require a 2/3 vote of the Members and SHALL be recorded with the Association Secretary and SHALL BE recorded with the Clerk Of Courts in the County where we reside--- If these amendments WERE NOT recorded with the Clerk of Courts and the Association has no record of them being voted and approved by the 2/3 required vote are these amendments VALID ???? We were told at our BOD meeting yesterday that it doesn't matter that they were not recorded in the county clerks office,they are valid.....Comments please.............

Also our By Laws state that if a lot is jointly held by a husband and a wife only the husband shall cast the vote..I know it's gender biased--but beyond that, it is Our By Laws and we were also told yesterday we don't have to abide by it because it's OLD LANGUAGE and doesn't apply.....AAAHHHH Need some input PLEASE....................

Thanks Bunches as always Linda C

BrianB (California)
Posts: 2,820

Posted:

if the HOA didn't follow their rules, then it ain't valid.

as for the voting thing, remove the gender from it, and basically, it states that only one person per deed can cast a vote. it shouldn't matter to the HOA who it is, but only one can cast. let them decide who wields the power.

LindaC3 (Florida)
Posts: 526

Posted:

I understand about the gender removal--- But by removing the verbage it in essence amending the by laws-- will it still require a 2/3 vote of the members or could I present it as a removal of BIASED WORDING that is kinda sorta discriminating in nature ??? And on another note until that is accomplished -- our elections are in 4 weeks-- do they still have to abide by the existing verbage ? Linda C

GlenL (Ohio)
Posts: 5,491

Posted:

In most CC&R's there is some language to the effect that portions that are invalidated by law shall be null and void without nullifying the entire document. This language is clearly biased and most certainly wouldn't stand up in a court of law. Does this mean that in households without a husband that no one can vote? Just from reading what you posted I would assume that they were trying to limit the vote to one person per household. I would feel confident allowing anyone from a household cast the vote. HOWEVER, I would also check with the Association attorney on how best to handle the matter going forward.

Votes on any matter concerning changing the CC&R's should be kept FOREVER. If ten years down the pike someone challenges a matter, you had better be able to prove that 75% of the homeowners did indeed amend the CC&R's to ban left handed people with red hair that were born in April.

Studies show that 5 out of 4 people have problems with fractions

ChadK (North Carolina)
Posts: 43

Posted:

I agree, one vote per household is what it means unless the HOA is a really old one. There are a few here in NC that have in the CCRs "no negros (except servants)". If it is a really old HOA then it probably means the man votes.

The laws have nulled restrictions such as these and they are uneforcable. I think you could get the membership to agree to pencil through husband and replace it with one vote per home.

BradP (Kansas)
Posts: 2,640

Posted:

If the amendments were not recorded they are not vaild, end of story. And if there is no record in your minutes of a vote happening there is nothing that can be done.

I agree, the gender thing needs to go, I would think it would be illegal but your attorney can answer that.

RogerB (Colorado)
Posts: 5,067

Posted:

Linda, you can not removal anything from the Declaration without an amendment. However, higher order Federal or State laws supercede the Covenants and you should be aware of those and not try to enforce them. If and when the Declaration is amended the obsolete items should be removed. So to answer your question, do not discriminate by sex by abiding with the existing verbage. It could get you into a losing law suit. You should count votes by any legal owner, period.

🎯 You've read this entire discussion

Join the conversation with 50,000 HOA & Condo Leaders:

✓ Ask follow-up questions
✓ Share your experience
✓ Get expert advice
✓ Access 350,000 discussions

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in here