Grandfather Question (WI)

How long has this been going on?

Your own restrictions are more stringent than the municipal laws. In that case, members must follow the HOA rules.

You can always change your own bylaws, but you cannot ignore the current ones.

Are you saying that the board doesn't have any responsibility for dispensing bad/incorrect information? It was a board member that was the source of the bad data!

Here is actual language:

21. No camper, motorhome, recreational vehicle, boat, trailer, bus, truck or motorcycle or
any other unsightly or unlicensed vehicle may be stored or kept on any lot unless in
compliance with applicable Town and/or County parking ordinances.

I could not find the specific language but our lawyers agrees with your assessment. I am just having a difficult time telling a boat owner that we mislead him and now he has to relocate his boat/rv. Some have gone to the trouble to pour storage pads.

It looks like we could change restrictions with a simple majority vote of the HO's. I don't believe the community woudl support boat/rv storage in any manner though.

If I understand, you are saying either enforce the current restrictions or call for a vote to modify them.

How do we know that? I don't believe Dave quoted any specific length from the CCRs.

Dave

I agree with Glenn. I would enforce the rule and not grandfather anyone. Along the line of the BOD has received many complaints and upon further investigation of the CC&R's and in consultation with your attorney....etc....etc.

Be polite. Give them a good say 60 days to make alternative arrangements but either enforce or modify it.

I expect the COMPLIANCE WITH APPLICABLE means places like registered/licensed storage lots, sales lots, maintenace lots, boat ramps, RV Parks, WalMart parking lots, etc. and if not such, back to the NO.....

I say the NO is the controlling.

Like there shall be NO guns fired with the town of so and so unless in compliance with applicable town ordinances. Well I own a gun shop with a firing range but it is registered/licnsed in accordance with applicable town ordinances so guns can be fired there. One could then say well yes I can fire a gun in so snd so town.

> unless in compliance with applicable Town and/or County parking ordinances.

That's strange language...ARE there any town ordinances that specifically apply to driveways?

from the OP:



If this ordinance exists -> case closed

Dave

Vehicle parking has always been a major issue. It is an area that can get tricky and one I do not claim to be an expert on.

I believe if the HOA had stricter rules in place then the local municipality has (let us confine it to vehicle parking for now), and people agreed with them (by signing the covenants) then the HOA is well within their right to enforce such.

Now the contentious issue becomes changing the covenants, but that is true be it any covenant. Try and modify a covenant that puts is stricter vehicle parking rules then the muncipality has, and watch the fireworks and the legally you can do this allegations begin. Oh yes you can make covenant changes but they must be made within how your covenants say to. This way the egg did come before the chicken...or is it the other way

Many times associations will grandfather in existing owners when changes are made as it is the only way they can get the changes approved. I usually do not like grandfather clauses in most anything. What I prefer is a time expiring clause but that is another subject.

As the new President of the BOD, be sure you read and understand all you can get your hands on. If in doubt and you cannot readily get something clarified (as in via this chat) then be darn sure you are on legally sound legs before you pursue something especially if you know it is a hot button or will cost folks money.

Also realize you represent all, not just a few nor just yourself. That said, when push comes to shove, the BOD is in charge.

I can see by your search for information you desire to do what is right. Keep that attitude.

Best of luck.

if the ordinance(s) exist -> case closed, the 'trucks' are permitted

if no ordinance(s) -> case closed, the 'trucks' are prohibited

no one on this forum can tell whether there are or are not ordinances

LET THE SILEMCE BEGIN

Thanks for the advice. I trust our lawyer but who knows. The village Hall is only 5 minutes away. I will make an inquiry.

I had no idea as to what i was getting into.

Even with attorneys, it's best to go with trust but verify.

It's possible that the town ordinance changed and both lawyers were telling you the truth. It's possible that one attorney didn't check the local laws but only State laws. Legal advice can be followed completely, partially or not at all. The decision is the Boards not the attorneys.

In what document does this language appear? CC&R's, bylaws, or some other document? (I did not see a definite answer to this question above.)

BTW, I read this like several others: If the town and/or county allows it then your HOA has to allow it.

I guess this is what makes it a horse race.

I say if one signed/agreed to covenants that are different/stricter then municipal law (let us confine it to this subject for sake of discussion and to be reasonable), then the covenants take precedent over municipal law.

Disregard. Just a senior moment.

Hi Dave:

You can have attorneys give opposing views on the same question for a CCR or Statute. What it comes down to is insuring which one is the brightest crayon in the box and not going to lead you into future trouble. I have seen expensive attorneys be wrong vs. cheaper correct and vice versa. If in doubt get one or two other consultation opinions.

My personal opinion is per your CCR as stated:

21. No camper, motorhome, recreational vehicle, boat, trailer, bus, truck or motorcycle or
any other unsightly or unlicensed vehicle may be stored or kept on any lot unless in
compliance with applicable Town and/or County parking ordinances.

If in compliance with local ordinance then allowed. If you want something different such as the neighboring subdivision then need to potentially amend your CCR’s to reflect the different one following your documents and statutes for amending; however, it more than likely will be an uphill battle to amend as you state many park boats and RV's.

I actually like the way your CCR is written in that it puts more of the legal liability on the local government to enforce instead of as much on the HOA. If not in compliance with the local ordinance you sic the local government on them, problem solved without neighbors suing each other.

Dave,

One of the biggest problems with this forum is that people are imprecise in their description of documents and the rest of us are left guessing at what is being referred to. I asked in what document does this language appear and you stated "Restrictions." Is that the title of the document? Are you stating that you have no Declaration of Conditions, Covenants, and Restrictions (or a similar title) and no bylaws, just a document titled "Restrictions?" Is your "Restrictions" document recorded?

There can be different names for what are generally called the Covenants. CC&R or Covenants, Condition & Restrictions is the most common. Ours are called Declaration of Protective Covenants.

Our Covenants are stamped as having been filed, recorded, indexed with the County Registar of Deeds with date (2007 in our case) and time so done. Every copy has this informational stamp on it.

A copy of Our Bylaws and the Nonprofit Articles of Incorporation were also attached and filed with the Covenants.

When you sign a contract for a home to be built you also sign for a copy of the filed Declaration of Protective Covenants, a copy of the filed Bylaws, and a copy of the Nonprofit Corporation Articles of Incorporation. A total of 24, double sided pages. 15 pages of covenants, one page of incorporation and 9 pages of bylaws. Having been down the road a few times, I asked for a copy to read several weeks before I signed a contract. He gladly gave me one.

Well, one issue resolved and another discovered.

Based on your posts, it sounds like this amendment isn't well known. Was that amendment to the CC&Rs filed with the county. If not, it isn't applicable until it is filed.

You may want the Association to do a Restatement of the governing documents - no changes, just incorporating all the amendments into one document. This can be done without a membership vote. Then file the restated documents with the county, state, etc. I would check with an attorney on the language required for certifying such a restatement.

Hope this helps,

Tim

Hi Dave:

Can you clarify please … was the filing date you mention stamped on the document by the County Clerk and Recorder or is it just the adopted date noted in your post above?

If the document was recorded then it will show at the top a dated stamp. The reason I ask is because Amendments to the Declaration / CCR’s which are recorded are generally very legal and binding upon the owners because everyone voted and the majority agreed to the change. However, minor Rules and Regulations not voted by the members and just implemented by a minority Board sometimes may or may not be legally binding as they are implemented by a minority of owners (few board members). On top of that you threw in the “developer” issue so a question would be when it was done did the developer have the authority?

Question: Are you Planned Community or Condominium?

Hi Dave:

Your state is difficult as the state apparently does not have statutes for Planned Community and only for Condominiums. I did find the following statute which is interesting in that it states that a master planned community is a private quasi-town.

703.03  Application of chapter. This chapter applies only to property, a sole owner or all of the owners of which submit the property to the provisions of this chapter by duly executing and recording a declaration as provided in this chapter.

Master-planned communities are not part of the purpose behind ch. 703's promulgation. Master-planned communities are an entirely different type and level of development than condominiums. A condominium is a multiple-unit complex, the units of which are individually owned, each owner receiving a recordable deed to the individual unit purchased and sharing in joint ownership of any common grounds or passageways. A master-planned community is a private quasi-town that may include different types of homes, including condominiums, commercial property, private streets and parks, and other recreational facilities. Just because a master-planned community has condominiums as part of the plan, a covenant governing the community is not subject to ch. 703. Solowicz v. Forward Geneva National, 2010 WI 20, 323 Wis. 2d 556, 780 N.W.2d 111, 08-0010.

In my state for building restrictions the HOA must file legal action within one year of the violation, but we have a common interest ownership act which covers planned communities.

Tread carefully in some instances because if they had permission then possibly in a court battle the homeowner could win. The fight you potentially will face is X was allowed to have so why are you picking on me. The issue is without governing state laws everything is based on your documents and whether or not they have been enforced. HOA is supposed to be equitable in that “all for one and one for all” so if one is allowed then without statute to fall back upon it becomes difficult.

I am glad you have an attorney and others to consult … best of luck and keep us informed.

JanetB2:

The legal advice I received from our attorney was to basically proceed and enforce the restrictions as written. In her opinion, the homeowners is responsible regardless of advice given by board. My problem is it just seems to get worse. We had board members on our ACC overlooking restrictions on fences, sheds, boats/rvs. The board member or members believed because the developer acting as ACC may have given permission for fences, as an example, that are not in compliance. Because it was believed that the developer approved illegal fences, we would be compelled to also allow unapproved fencing as the precedent had been established by the builder. The builder failed and we have no way of determining what was or wasn't approved. We also have a prevision that states if a fence plan is submitted and not approved within xx number of days, the HO can proceed as if approved.

I wanted to get the community back on track but the more I see and read, the more difficult it becomes. We are in no position to defend in a legal skirmish. My neighbor who owns a two boats,a snowmobile and trailer, also works for a law firm. A real potential issue in my mind.

I cannot find anything in our documents allowing the builder to allow any waiver of restrictions. The whole thing about the stockade fences started prior to my moving in to the neighborhood in 2005. Many of the fences were installed prior to 2005 when the builder still had control of the ACC. WE first elected officers in late 2005 or 2006 which leads me to believe that the builder or a builder rep approved anything to get a home sold. Things are so bad, that, for all I know, some fences were put up without approval. As explained to me, because the builder was approving any fence, the community appointed ACC felt obligated to disregard the restrictions and rubber stamp pretty much any fence as and it well. Compound this with some of the homes having been sold and now occupied by new owners and it just gets ugly.