MI: Interpretation of cc&R and HOA's additional rules

Started by StephanieM5 • 9 replies • 1572 views

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StephanieM5 (Michigan)
Posts: 6

Posted:

Our Michigan subdivision's CC&R's are dated in 1958 with a 25 period initial renewal and every 15 years thereafter. These were recorded at the local county offices. No amendments or changes have been made since 1958. The inital land was developed over 20 years and our HOA was created in 1966. There are 7 separate subdivisions on the original land. This is the year that we can make amendments to our CC&R. The biggest area of discussion among the 250+ homeowners relates to sheds, pools, and fences. Our CC&R state:

No building, fence, wall, sea wall, piling or other structures shall be commenced, erected or maintained nor shall any addition to or change or alteration therein be made, except interior alterations, until one complete copy of the plans and specifications showing the nature, kind, shape, height, and materials, color scheme location on lot an approximate cost of such structure and the grading plan (topography and landscaping included) of the lot to be built upon, which have been submitted to and approved in writing by the Party of the First Part or their duly authorized agent...

Our HOA also have a separate set of construction specifications which are a little stricter with regards to sheds, pools and fences:

No above ground swimming pools allowed; in-ground pools of gunnite or vinyl liner only.

No fences allowed except as required by state and township requirements for swimming pool safety. The minimum of 4 ft. chain link
or equivalent is recommended and to be placed around the immediate pool area and not to exceed the length of the existing home.
All fencing must be approved by the xxx Board and a property improvement form must be completed.

No sheds, barns or pole barns to be constructed except for approved permanent construction with standard construction footing that is permanently attached to the existing home structure.

Over the years the construction specifications have changed. Initially they stated No Metal Sheds, now no sheds at all unless attached to the house.

My question is can the construction specifications be changed without homeowner's voting on it? I asked our HOA president who has been helpful. We looked at past meeting minutes and did not easily see where the specs were discussed at any meeting. He asked the HOA attorney who said they are enforceable but wouldn't explain under what rule/section/etc. Or how can they be changed? There is not mention in the HOA's constitution. I heard "that's the way it has always been done" many times.

We do not have any committees within our HOA. The HOA president approves the construction requirements.

An interesting side note is that when I went to the county and looked up my address and subdivision there are a separate set of cc&R on file, not these from 1958. The HOA attorney stated that the newer CC&R's are not enforceable. When I looked under our HOA name, the original CC&R do not come up.

Any advice or insight? Thank you.

Stephanie

DaveD3 (Michigan)
Posts: 796

Posted:

Sounds like a bit of a mess.

First of all, I think you need to talk to an attorney about what the county has on file.
You said they have a different set of documents on file. If you look in the 1958 subdivision documents, is your property included? Or is it just that the documents for your house don't include reference to the subdivision?
I'm no attorney, but I think that if the county doesn't have any records associating your property with the 1958 documents, they don't apply to you.

That aside, what do your documents state about the board (or governing body) establishing rules? Probably something about rules being established consistent with the bylaws or something to that effect. So the board can't establish rules prohibiting outbuildings if the bylaws say nothing about them, or they can't allow outbuildings if they're prohibited.
Changing the rules over the years without a vote of the owners seems like a slippery slope to me.

As for the president being the sole person to approve things, again what do your documents say? Do they say that approval shall be made by the president, or the board? I would expect that responsibility falls on the board. The board would normally, upon receiving a request, review and vote on it, registering the decision in the minutes of a meeting. An approval or denial is "action taken" and needs to be documented. If the documents state that the board is to approve, anything the president does alone is invalid. If the president says that the board gave him the authority to be a one-man committee on such matters, that decision would need to be consistent with the bylaws and again, documented in minutes. I suspect that giving the president the authority solely is NOT within the bylaws.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By StephanieM5 on 07/18/2013 5:04 PM

My question is can the construction specifications be changed without homeowner's voting on it?

It's going to depend on the wording in your governing documents.

Typically, the CC&Rs and/or Bylaws allow the Board to develop guidelines or specifications for exterior changes. If there is no requirement for the membership to approve or vote on these changes, then the Board would be allowed to amend them at will or in a procedure adopted by the board for such changes.

Does your Board have a policy on how to adopt/amend policy resolutions (as this would be the procedure process)?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

One nasty HOA battle I was involved in was a result of the Architectural Control Committee never approving a shed when the Covenants said any outbuildings must be approved by the ACC. The ACC never approved any requests (also let it be known they never would) and fining those that did build them as they never requested ACC permission. Chicken and egg argument.

Net result was that after several nasty letters from attorneys the "no sheds ever" people were voted off the BOD. A new ACC was appointed and shed requirements were drawn up. I was the first one to build one.

ValerieS2 (Michigan)
Posts: 244

Posted:

Stephanie I know this does not answer your question, but I am curious as to why your HOA would ban in ground fiberglass pools....

StephanieM5 (Michigan)
Posts: 6

Posted:

Thank you all for your posts.

In response to some of the questions:

1. Regarding the fiberglass pool - I have no idea why it is not allowed. The current construction rules were written in the 1970's. My guess is that fiberglass was not a viable option then. The board at that time considered in-ground pools as "structures" but above ground pools as "out-buildings".

2. Regarding board authority - From what I could determine, the reference to establishing rules, etc. our HOA constitution states: "The government of xxx shall be vested in a Board of Directors." President can "enforce all rules and regulations of HOA". Committees "1. Each committee shall be composed of as many members as the chairman may determine. 2)The President shall advise each committee with respect to the specific activity, responsibility and function."

So, if the board alone is able to change the construction rules, then how do you prevent the rules changing everytime a new board is elected? One board can be very liberal and permit fences, all pools, and all sheds. Whereas the next board changes the rules and imposes more restrictions. This would disrupt the harmony of the neighborhood.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By StephanieM5 on 07/19/2013 9:49 AM

So, if the board alone is able to change the construction rules, then how do you prevent the rules changing everytime a new board is elected?

Actually you can't.

Our policy to adopt or amend policy resolutions require that the Association hold a meeting of the membership for feedback to the policy. This helps minimize every board changing something that they don't like. Additionally, in VA, the membership may vote to overturn a rule that they don't like. This also helps minimize the changes.

TimB4 (Tennessee)
Posts: 21,059

Posted:

I failed to finish my reply before posting it.

I wanted to include that the only way you can keep it from happening is to amend your governing documents (I'd suggest the Bylaws) requiring a membership vote for changes to the construction guidelines.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Steph

You said:

So, if the board alone is able to change the construction rules, then how do you prevent the rules changing every time a new board is elected? One board can be very liberal and permit fences, all pools, and all sheds. Whereas the next board changes the rules and imposes more restrictions. This would disrupt the harmony of the neighborhood.

You are correct. Changes in thinking can make a world of difference and really disrupt everything.

I would say there are several ways to protect what people want to protect. One is to have the covenants state specifications for fences, pools, colors, styles, etc. This might make them rather lengthy but the protection is there.

Enforce any restrictions, rules, regulations, etc. that are already in place.

Be sure people are elected to the BOD that want things the way you want them. Run yourself out of self protection. I have done that before.

If push comes to shove then band like thinkers together and discuss legal action. Have people put their money where their mouth is. A last resort but a viable one.

Hope this helps.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Tim's suggestion about a Bylaw is a good idea.

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