When is a Rule considered an Amendment?

Generally a BOD alone can make Rules and Regulations. They do not need owner approval. Rules and Regulations are used to clarify/define and as long as they do not override/toughen up Covenants/Bylaws then there is usually not an issue. Like change the pool open hours is simple enough. Then come the trickier ones like define a commercial vehicle or limit rentals, etc. but other subjects.

In your example the potential issue I see is that the Covenants say no overnight parking of certain type things. The R&R says the BOD could allow a waiver for those certain type things to be parked overnight for 3 days.

One could make a case that the Covenants say no overnight parking of such and your BOD is using R&R's to give them the power to override this.

Just my opionion.

I’m inquiring about “Rule vs. Amendment” issues because we are in process of ‘overhauling’ our CC&R’s to correct errors, conflicts between documents, and compliance with FS 720. We’re self managed and have decent folks, BOD and Members, trying to do the right things in the right way. Right now we can not rely on our legal counsels opinion and are in process of changing that.

CarolR11, I quickly realized my error on approval % after posting. Our Declaration enables the Board to make reasonable R&R’s but the Articles call for approval by 60% of members. Under ASSOCIATION POWERS is the following: “To make and amend reasonable regulations respecting the use of the lands in the Project area owned by the members, or groups thereof, as tenants in common and provided, however, that after the Developer shall divest itself of control of the Association as herein provided, all such regulations and amendments thereto shall be approved by not less than 60% of the votes of the entire membership of the Association before such shall become effective. While the Developer shall remain in control of the Association such regulations and amendments thereto need only be adopted by the Board to be effective. (Note – the Developer is long gone)

To amend the Declaration: “AMENDMENT REQUIRES MORTGAGEE’S CONSENT. These restrictions may not be amended without the consent of each bank, insurance company or federal savings and loan association holding a purchase money first mortgage upon a LOT in the SUBDIVISION and the approval of at least two-thirds (2/3rds) of the lot owners either voting at a meeting or expressing consent in writing or any combination of the above”.

So, in JohnC46’s view if the R&R’s simply clarify or define the Covenants then it’s OK, but if they override/toughen up the Covenants an Amendment is required.

For example:

The Covenant states “The parking or storage of automobiles except upon paved portions of roads and driveways is prohibited”. The R&R states ”No parking is allowed on grass or any other portion of a lot other than the finished driveway”. That’s OK because it clarifies the covenant.

The Covenant does not address parking in someone else’s driveway but the R&R states “No parking in any other driveway is allowed without the lot owner’s consent”. That seems to be ‘toughening’ the Parking Covenant which would then require an Amendment. (?)

As JohnC46 noted, the Covenants say no overnight parking of certain type things. The R&R says the BOD could allow a waiver for those certain type things to be parked overnight for 3 days, so the BOD is using R&R's to give them the power to override this. Hence it should be an Amendment. (?)

As a note the membership is in general agreement that you shouldn't park in someone else’s driveway without permission and that it’s a good thing to have a temporary waiver on overnight parking if someone is moving in or out and the truck is there for a day or so or for whatever extraordinary reason may happen.

So, it’s not the content of the Rules that are in question it’s the process of deciding if a Rule is actually a Rule or really an Amendment to the Declaration.

My personal view is if we are going to go through the rigor of Amending the Declaration we should simply include the “Rules” that overlap the Declaration into the Declaration and fix these inconsistencies all at once.

Sorry for the length of this but it’s important to our HOA and I appreciate all thoughts on the topic.

Zach

Some additional info related the OP's question for Florida HOA members:

http://www.floridacondohoalawblog.com/2011/05/articles/covenant-enforcementviolations/what-rules-and-regulations-are-enforceable/