By-law Powers?

We are having problems with the partner of an HOA member. We, as an HOA board, are attempting to have by-laws addressed. We have set a date to start legal proceedings. This member’s partner, who has over the last year been disregarding several bylaws, said he retained a lawyer, that said HOA by-laws are worth about as much as toilet paper. OK, when we as property buyers sat in the title company’s office and were handed an 1” stack of paper HOA BY-LAWS.....thou shalt not……. We signed those papers. So now as HOA board members how much power did those papers really have?

Anita,

Association governing documents vary in their authority and "power". A higher precedent document would carry more authority than a lower precedent document (similar to Federal laws having more authority than State laws).

Typically, unless there is a conflict between documents, all of the governing documents would be considered enforceable. If there is a conflict, then the document with the higher precedent would be the one that must be complied with (for that specific issue/conflict).

The normal order of precedence for Association documents are:

Federal Laws
Federal Regulations
State Laws
County Codes
City Ordinances
Declaration of Covenants, Conditions and Restrictions
Articles of Incorporation
Bylaws
Resolutions (decisions made by the Board)

All of that said, in reality, your governing documents have as much "power" as the Association is willing to defend/enforce in a court of law. Until then, the documents are an agreement between all the parties involved and will only work as long as all parties are willing to comply with them. If one (or more) individuals chose to ignore the agreement, and/or believes that the agreement isn't valid, one side or the other will need to take the issue to court and have a judge/jury determine the documents authority and enforce or break the agreement.

From your posting, it sounds like the individual you describe doesn't believe the Association is willing to take the issue into the judicial system and is calling your bluff by saying that they retained an attorney. It appears to be the Associations move.

As Babette suggested, if the Association doesn't already have an attorney they should find one. Your attorney, who will have access to your governing documents and know your State laws, will be able to advise you of your chances of winning in court.

Hope this helps,

Tim

All this disruption stemmed from curbing pets offsite. Prior to getting a pet, these 2 voted to ban all pets on premises, but the by-laws in place stayed, which state 1 pet per Co-owner, Guests, tenants, and visitors of a Co-Owner shall not be permitted to bring any pets onto the Condominium property.

A couple years ago they became pet owners, and their new roommate has one also. They often do not leash their dogs, they will charge, barking and jump on us. Their dog urinates on the sidewalk and is never rinsed off.

We are having other serious issues with the new roommate and gave notice we will start eviction proceedings. Our bylaws state tenants must abide by the same master deed and by-laws, failure to do so shall result in the immediate eviction of the offending tenant or tenants. There are only 6 units, retaining a lawyer for this would be a hardship, but her tirades, and complete disregard to any rules in place add enough stress, we (3 units) make every attempt to avoid coming in contact with them. The layout of our property forces us to walk in front of their unit and over the urine stained sidewalk. If we feel the need to go through with the eviction, we will ask for advice from our lawyer.

I'm not an attorney and I do not work within the legal profession.

In my layman's opinion, unless the Association participated in the rental process (having to approve the tenant before the lease was signed or if the Association is the actual landlord) I don't believe that the Association has any legal standing to evict the tenant. This is because the Tenant signed an agreement with the landlord and not with the Association.

The Association would certainly have enforcement authority against the member/owner of the unit (as typically there is language in the governing documents that make the member responsible for the actions of their guests/tenants) but would typically have zero legal standing to go after a tenant directly (with the exception of recouping damages directly caused by the tenant).

Even if the Association does have authority to evict a tenant, they must still comply with applicable landlord/tenant laws.

My advice, document the damage and violation then seek enforcement through the member. Let the member/landlord deal with the tenant. If enough fines and/or enforcement actions are brought against the member they will likely evict the tenant or at least not renew the lease.