Deed Restrictions placed in by-laws

This seems to vary from state to state, but there is a body of common law that holds that an association cannot alter deed restrictions by amending its bylaws.

See http://www.appeals2.az.gov/Decisions/CV20050072Opinion.pdf

In this Arizona Court of Appeals opinion, the court held that a townhome community could not impose deed restrictions to create a 55+ community by amending the bylaws.

Among the authorities cited was Section 6.7(3) of the Restatement (Third) of Property:Servitudes (2000):

"Absent specific authorization in the declaration, the common-interest community does not have the power to adopt rules, other than those [designed to protect the common property], that restrict the use or occupancy of, or behavior within, individually owned lots or units."

Since the Restatement holds more weight than the self-serving opinion of the HOA attorney, it is not likely legal to amend the CC&R's by amending the bylaws.

What is it that your association is trying to do?

The HOA wants to amend the by-laws. Our basic understanding is the by-laws govern the way the board operates, elections, conducts meeting, roles of it officers, etc. The current amendment process is for 75% of the members to approve a by-law amendment. That is difficult for this type of document.

One proposed change to the bylaws is to the amendment process itself to make it easier to obtain and change to 51% of those present in person or by proxy at a member meeting. Seemed reasonable that would be the interested owners for this type of document.

BUT if deed restrictions can be placed in the bylaws, it is too easy for a few. I don’t want a few placing deed restriction that yellow canaries are not allowed. (I know silly, but do you see my point).

PS, I & others have worked months on bylaw amendments and this statement from our attorney was so unexpected. Never did any of us think this could be an avenue for a getting deed restrictions implemented.

My last HOA required 75% of owners approval needed to change CC&R's and/or Bylaws. We changed it to 66% but we needed 75% to agree to the change.

We simply said 66% is enough protection and owners agreed but we would not have been able to do such without a massive proxy gathering effort as most did not really care about it.

BJS

As has been said, laws, ruels, regulations, etc. it can vary quite a bit especially when concerning owner associations in FL and CA.

As I understand it, CC&R's (Covenants, Conditions and Restrictions) are filed with the deed and I guess they could be called Deed Restrictions. They also contain methods to change them, so I assume this means that if homeowners can change the CC&R's then they are changing the deed restrictions. Of all them I have seen, read, and I lived under 5 associations, it took at at least 66% of homeowners agreeing to make a change. In some cases I have seen 75% and in some I have heard it takes 100%.

Bylaws generally closer define aspects of the CC&R's but they cannot overide them. If the CC&R's say there cannot be any yellow canary's, the Bylaws cannot get around it by saying (as some else said) except on days ending with a y.

Some Bylaws are filed with the deeds, some are not. The Bylaws in my HOA are filed with the deed. I do not know if Bylaws filed with the deeds are also deed restrictions. Perhaps someone else can clarify that. Bylaws also contain methods for owners to change them. Again usually a majority of owner but I have heard of some that allow Bylaw changes with less then 50% of owner approval.

Hope this helps.

Jean

It can vary. Our CC&R's and Bylaws are both filed with the County Registrar of Deeds thus they are both Deed Restrictions.

Personally I prefer it that way. Legally on the tablle, nothing hidden, nothing jumping up at the last minute, no denial about never seeing/signing for, etc.

In my opinion, it is a bad idea to lower the threshold. It makes it easier to to pass bad changes and has the potential to upset even more homeowners. Having a higher threshhold insures that a greater percentage of homeowners are satisfied with the outcome.