Enforcing Poorly Written CC&Rs

I have a question about enforcement of CC&Rs in a single family HOA in SC. Below is the only mention of enforcement in any of the CC&Rs or Bylaws:

"GENERAL PROVISIONS

SECTION 1. ENFORCEMENT. Developer and any Owner or Occupant shall have the right to enforce, by a proceeding at law or in equity, all restrictions, conditions, covenants, and reservations now or hereafter imposed by the provisions of this Declaration. Failure by Developer or any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. ln the event of a minor, unintentional violation of this Declaration which does not impair the general plan of development, Developer reserves the right to amend or release this Declaration for such violation as it may apply to an individual lot."

How can we enforce mainly repeat violations? Can we use a Board Resolution to set up a fine schedule? We brought up to the members on the notice of our meeting that we were going to discuss a fine schedule and we had a good turn out. They are not liking the idea of a fine schedule, so getting the members to approve it is not good.
If I understand it right the Board Resolution can define or clarify the meaning of a section on the CC&Rs. Being our CC&Rs state enforcement but not how they will be enforced can the board use a Board Resolution as a way to clarify a means of enforcement, by setting a fine schedule?
Thanks
Scott

I am with Brad. Many CC&R's give the BOB the right to set up a fining schedule. The problems usually arise when no schedule has been set and peole say you are being capricious.

Also what you posted said to me: Just becasue we have not enforced something, it does not stop us from doing so. This stops the arguement of well they never fined anyone for this before.

Hope this helps.

Scott

Specifically what are you looking for?

The right to fine as an enforcement tool?

If so look for the word fine, remedy, enforce, etc. I have seen docs when the word remedy, enforce, etc. was interperted as being able to set a fining structure.

Hope this helps.

Right now and in the past they send out violation notices and that is it, no follow up to see if they complied or sending any further notices. We are looking to use a fine as a deterrent and an enforcement to violations. The people filing the complaint are tired of the CC&Rs and bylaws not being enforced.
It states
"Developer and any Owner or Occupant shall have the right to enforce, by a proceeding at law or in equity, all restrictions, conditions, covenants, and reservations now or hereafter imposed by the provisions of this Declaration."

Does this " proceeding at law or in equity" give the board the right to use a fine as enforcement?

Thank You
Scott

Glenn

From the State of SC site:

South Carolina Title 27 - Property and Conveyances

CHAPTER 52.

This chapter does not exist in the Code of Laws (current throught the end of the 2011 session).

Legislation has been proposed in the 119th session (2011-2012) to add a chapter with this number.

SC does not have HOA Rules and Regulations. The above bill/chapter has been stalled in committee for several years. As of now it is considered a dead issue. I have personally talk to several State Senators about keeping it dead as I do not want SC becoming like CA and FL where politicians and bureaucrats are telling owners how to run their associations.

SC does have a Horizontal Property Act, Title 27, Chapter 31, but it applies to multi story condos only. It does not apply to townhouse nor single family home associations.

Under the General Provision Section, our CC&R's say:

"The Board of Directors may impose fines or other sanctions, which shall be collected as provided herein for the collection of assessments."

The assessment section does not layout specific fine amounts (and it something we will need to do) but it does layout a process including notices, hearings, appeals, etc. so I think we have it covered in a fair manner.

Hope this helps.

So if the Horizontal Property Act does not apply to single family home associations there is no State Law to go by. Does that leave the only option is to amend the CC&Rs, get 75% of the homeowners to approve it and have it filed with the county?
Thats for all the info and I will have many other question later. I think this is harder than starting a new HOA, having to go by someone else incomplete CC&Rs paperwork and missing paperwork. The previous boards keep very little records, I am scanning everything I have to a database so future boards will have everything. I am making procedures from the documents and ideas from this site and its been a big help.

Thanks Scott

Scott

The hierarchy in SC (and most states) is:

1. Laws. No doc of any kind can override a law. No association can legalize murder.

2. SC Articles of Incorporation for Non-profits (which an HOA is). They often say so and so (like proxy ballots allowed) unless your Bylaws say other (as proxy ballots are not allowed), so in reality SC generally defers to the associations Bylaws.

3. Covenants, Covenants, Controls, and Regulations, etc. Ours is called Declaration of Protective Covenants. It is attached/recorded with the deed thus often called Deed Restrictions. Changes to such often take more then 50% all owners agreeing to do so (66% or 75% more common) and for some changes it might well take 100% of all owners agreeing to do so.

Typical covenants are:

No unit can be rented within 6 months of purchase.

All mailboxes and mailbox posts shall be of a similiar style and color as initially installed by the declarant.

4. Bylaws. Ours are recorded with the deed, not all are. These are often clarifications and explanations of the Covenants. As an example the Covenants might say the association shall be governed by an Elected BOD but the Bylaws will clarify how elected, recalled, terms of, etc. Changes to Bylaws often take a certain % of owners to change. Usually fewer owners agreeing to do so then it takes to change the Covenants.

I recently learned that there are some (I believe few) Bylaws that are written such that they allow the BOD itself to change them. A practice I personally do not like, but can be done if originally written so. Ours do not allow for such.

5. Rules and Regulations. These are made by the BOD. They usually clarify things such as the Covenants might say no overnight parking of commercial vehicles but neither the Covenants nor Bylaws specify what a commercial vehicle is thus the BOD passes an R&R trying to clarify what a commercial vehicle is.

One source of reoccuring problems has been BOD's that write R&R's that try to violate/circumvent the Covenants and/or Bylaws and in some cases, violate the law. Just because the BOD wants so and so does not mean they can make it such with R&R's, though many try to do such.

An association R&R's can tighten up on local regulations. Like a local regulation might say that no fence can be over 8 feet tall but an association could make a R&R that says no fence in the association can be more then 6 feet tall.

Generally Covenants and Bylaws were put in place before the declarant sold house one. Quite often they are boiler plate and need tweaking as time goes on.

Overall in SC there is no control of HOA's by the government. Some believe this means the BOD can run wild. Some believe it allows a BOD to have the freedom to properly run their particular association as they best see fit to do so.

Now all that aside, when an HOA is under declarant control the declarant can pretty well make any change they so desire (Covenants, Bylaws, etc.) so all bets could be off under declarant control.

Hope this helps.

No. "Proceeding at law or in equity" means you have to take the party to court.