Using rules to restrict boat/camper parking

Started by DaveC10 • 16 replies • 3825 views

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DaveC10 (Wisconsin)
Posts: 8

Posted:

We have language in our bylaws deferring to village rules regarding boat and camper parking. Village ordinance basically says "Boats and campers less than 30 ft long may be parked beside home or behind home."

We do not believe we can get to the 2/3 majority to change this language. We also have an issue with the fact that this has gone on so long, many boat/campers owners now populate our community with their rv and boats. We did discuss the fact that most camper owners choose to ignore village ordinances and park their campers on their driveways. (welcome to the age of entitlement) Our lawyer does not believe the village would enforce the ordinance even if we complained.

Does anyone have experience in drafting a rules that the BOD could vote on to make boat camper parking more difficult? I know we have to recognize the village ordinance if we cannot get the required 2/3 vote to change the restriction. The question is how do we use the rules to achieve our goals..

TimB4 (Tennessee)
Posts: 21,061

Posted:

Dave,

rules may not be in conflict with the governing documents.
Therefore, if the bylaws defer to the village rules, you would first need to amend the bylaws (which you already said there isn't support for).

I would still make complaints to the Town about the violations. Just because your attorney doesn't think the village will enforce doesn't mean they actually won't. You won't know until you try.

If they don't enforce, then gather support and bring the issue to the city council.

TimB4 (Tennessee)
Posts: 21,061

Posted:

Oh, forgot to add.

Since, the Bylaws effectively say that "Boats and campers less than 30 ft long may be parked beside home or behind home." The Board still has the option of enforcing the Bylaws. They don't need to have the city do it for them.

Therefore, the Board could go around and identify the violators of those rules and follow the Assocaitions enforcement procedures.

DaveC10 (Wisconsin)
Posts: 8

Posted:

Tim:

Our bylaws actually do not allow for any boat or camper parking. The problem was the bylaws were drafted by a secretary with no legal background. (Builders idea) She included language in the bylaws that stated our restrictions on boats/campers/etc would be superseded by village rules.

Our lawyer suggested drafting rules to clarify such as requiring an enclosure to park boats/campers in rather than just following village ordinance allowing for parking beside or behind home. I thought maybe we could require a community license or start charging a fee on boater/camper owners that do not comply with village ordinances. Some of the campers are to big to be parked on the side of homes due to grading.`

My thinking is if lawyer can propose rules to bring about our desire, maybe someone else has similar experience on HOAtalk.

It become a bit of a sore spot when camper and boat owners complain about being persecuted and refer to village ordinances but refuse to fully comply with the village ordinance because of the cost of adding a storage pad next to their home. Of course, this would have to go through ARC.

Did I just have an idea for a rule?

As far as I can see when driving through our village, the village does not bother to address the parking ordinance anyplace.

PeterD3 (Florida)
Posts: 708

Posted:

Typically, the BOD can create and enforce rules easily regarding the common areas and of course the CC&Rs, bylaws, etc.

Once it becomes regulation or use restriction of PRIVATE PROPERTY then that would typically be a membership decision. And thank goodness for that!

DaveC6 (Wisconsin)
Posts: 76

Posted:

Quote:

Posted By TimB4 on 08/31/2013 7:25 AM
Oh, forgot to add.

Since, the Bylaws effectively say that "Boats and campers less than 30 ft long may be parked beside home or behind home." The Board still has the option of enforcing the Bylaws. They don't need to have the city do it for them.

Therefore, the Board could go around and identify the violators of those rules and follow the Associations enforcement procedures.

Tim:

Thank you Tim. Interesting.

KevinK7 (Florida)
Posts: 1,343

Posted:

The only thing I wonder is if the Covenants and Restrictions permit boats of any size, a bylaw restriction may be in conflict with the governing documents and any bylaw ban would be wrong. In my opinion, The HOA could enact reasonable rules, such as parking requirements, fencing, or pads, and in theory use the ARC to deny any changes, but it could also be argued that such methods would be in violation of the governing documents because the HOA is using their authority to effectively ban these boats and create negative restrictions without approval of the membership.

PeterD3 (Florida)
Posts: 708

Posted:

"In my opinion, The HOA could enact reasonable rules, such as parking requirements, fencing, or pads, and in theory use the ARC to deny any changes,..."

I disagree Kevin.

GENERALLY speaking, the HOA (i.e. BOD) only has soverign control of the commonm areas. Changes to CC&Rs, Bylaws, etc. require membership voting.

FURTHERMORE, in Florida, to establish ARC guidelines and then deny their implementation is illegal.
That is established in FLSS720.3035 (2).

DaveC10 (Wisconsin)
Posts: 8

Posted:

Thank you for the opinions. It does make me wonder if our lawyer can use rules to make boat/camper parking more difficult via rule adoption.

Curious to also know if any other state requires title search to go along with any vote conducted in their HOA?

KevinK7 (Florida)
Posts: 1,343

Posted:

Quote:

Posted By PeterD3 on 09/01/2013 5:22 AM
"In my opinion, The HOA could enact reasonable rules, such as parking requirements, fencing, or pads, and in theory use the ARC to deny any changes,..."

I disagree Kevin.

GENERALLY speaking, the HOA (i.e. BOD) only has soverign control of the commonm areas. Changes to CC&Rs, Bylaws, etc. require membership voting.

FURTHERMORE, in Florida, to establish ARC guidelines and then deny their implementation is illegal.
That is established in FLSS720.3035 (2).

My opinion is contingent on the covenants having some level of specificity. I personally disagree with this method but think it is a more viable option.

MatthewW4 (Arizona)
Posts: 500

Posted:

Dave,

I am troubled by both what you are doing and how you propose to go about it.

Your recurring references to “bylaws” make me question whether you understand just what each of your documents are for. Bylaws are a specific legal document that controls how the incorporated association operates. Bylaws have no application whatsoever to controlling real estate owned by the members.

Your deed restrictions should be stated in a recorded document with a title similar to “Declaration of Covenants, Conditions, and Restrictions,” often referred to as “CC&R’s.” This is where property restrictions are found. CC&R’s tell you what you may or may use your property. Regardless of the title, your deeds should refer to restrictions in a recorded document.

In recent years the courts have begun to interpret CC&R’s less on the precise wording and more on the intent of the Declarant. In your case, the Declarant made it clear that local government ordinances would control RV parking in your development. All owners bought into your development under those conditions. Clearly, the Declarant did not omit the subject of RV parking, so even if the courts were to use the standard of strict construction you would have no chance of prevailing with an argument that the board may adopt some other scheme.

You have already indicated that there is widespread disregard for the local ordinances both inside and outside your subdivision. Having spent some time in Wisconsin in past years, that comes as no surprise as it seems as though everyone in the Badger State owns a boat. Despite having no popular support (you admitted you could not get 2/3 of the owners behind you), you appear to be willing to resort to subterfuge to cram your personal ideas down your neighbors’ throats.

Also troubling is that apparently you have an attorney working with you. For one thing, he has apparently not explained to you the difference between bylaws and CC&R’s. My experience is that HOA attorneys are quite good at generating huge fees for themselves by defending those clients foolish enough to follow their advice. A good attorney will need to search through case law and other works, such as the Restatement of Property. And he will charge you for the time he spends on your research.

I would strongly suggest that before you declare war on your neighbors that you seek out and follow some competent legal advice.

MatthewW4 (Arizona)
Posts: 500

Posted:

Quote:

Posted By MatthewW4 on 09/01/2013 11:32 AM

CC&R’s tell you what you may or may use your property.

Should have read: "CC&R's tell you what you may or may not use your property for."

PeterD3 (Florida)
Posts: 708

Posted:

Property use or use restrictions would be a sub-set.

I have found the GENERAL description of CC&Rs to be:

The governing documents that dictate how the homeowners association operates and what rules the owners and their tenants and guests must obey.

These may also be called the bylaws, the master deed, the houses rules or another name.

These (documents and rules) are legally enforceable by the homeowners association, unless a specific provision conflicts with federal, state or local laws.

MatthewW4 (Arizona)
Posts: 500

Posted:

Quote:

Posted By PeterD3 on 09/01/2013 3:15 PM
Property use or use restrictions would be a sub-set.

I have found the GENERAL description of CC&Rs to be:

The governing documents that dictate how the homeowners association operates and what rules the owners and their tenants and guests must obey.

These may also be called the bylaws, the master deed, the houses rules or another name.

Could you cite an authoritative source that equates "bylaws" with deed restrictions?

In Wilson v. Playa de Serrano, the court found held that bylaws "typically pertain to internal corporate governance." The court ruled that deed restrictions may not be imposed by amending the bylaws. See http://caselaw.findlaw.com/az-court-of-appeals/1485688.html

The same court also held that:
"to impose a restriction on a lot owner’s use of the lot, the restriction must appear in the recorded declarations. If the recorded declaration does not contain or at least provide for later adoption of a particular restriction or requirement, that restriction or requirement is invalid." [Citations omitted.]

JayP3 (Florida)
Posts: 154

Posted:

If you recall I used the statement "I have found..." and the term "generally" in my response.

I did not cite it as fact, truth, or otherwise.

I welcome your definition or understanding.

But here's an article referring to them as ANY rule or policy:

http://realtytimes.com/rtpages/20051221_ccrs.htm

To each his own.

DaveC10 (Wisconsin)
Posts: 8

Posted:

Quote:

Posted By MatthewW4 on 09/01/2013 11:32 AM
Dave,

I am troubled by both what you are doing and how you propose to go about it.

Your recurring references to “bylaws” make me question whether you understand just what each of your documents are for. Bylaws are a specific legal document that controls how the incorporated association operates. Bylaws have no application whatsoever to controlling real estate owned by the members.

Your deed restrictions should be stated in a recorded document with a title similar to “Declaration of Covenants, Conditions, and Restrictions,” often referred to as “CC&R’s.” This is where property restrictions are found. CC&R’s tell you what you may or may use your property. Regardless of the title, your deeds should refer to restrictions in a recorded document.

In recent years the courts have begun to interpret CC&R’s less on the precise wording and more on the intent of the Declarant. In your case, the Declarant made it clear that local government ordinances would control RV parking in your development. All owners bought into your development under those conditions. Clearly, the Declarant did not omit the subject of RV parking, so even if the courts were to use the standard of strict construction you would have no chance of prevailing with an argument that the board may adopt some other scheme.

You have already indicated that there is widespread disregard for the local ordinances both inside and outside your subdivision. Having spent some time in Wisconsin in past years, that comes as no surprise as it seems as though everyone in the Badger State owns a boat. Despite having no popular support (you admitted you could not get 2/3 of the owners behind you), you appear to be willing to resort to subterfuge to cram your personal ideas down your neighbors’ throats.

Also troubling is that apparently you have an attorney working with you. For one thing, he has apparently not explained to you the difference between bylaws and CC&R’s. My experience is that HOA attorneys are quite good at generating huge fees for themselves by defending those clients foolish enough to follow their advice. A good attorney will need to search through case law and other works, such as the Restatement of Property. And he will charge you for the time he spends on your research.

I would strongly suggest that before you declare war on your neighbors that you seek out and follow some competent legal advice.

Mathew: You seem to be willing to make certain assumptions about me and what I am trying to do. Frankly, I find your assumptions troubling as well. I have lived in this community for 5 years before joining the board. I never once complained about boats campers. Only after joining the board was I asked to investigate the language in our CCR's. If I had an agenda, I would have taken both lawyers advice and enforce the rules as written. My ethics would not allow me or the other board members to go down that path.

The original builder did a terrible job of drafting our restrictions in terms of boat/camper parking. At some point, in 2004, they builder tried to strike out the language in which village ordinances would supersede our CCR's. The problem was that the builder tried to modify a restriction with a rule. I believe their intent was clear but their procedures were sloppy.

We have completed two different surveys regarding the boat/camper issue and both surveys favored boat/camper restrictions by 6 to 4. We felt that the community supported changes in the restrictions.

Not sure my efforts would fall under the heading of declaring war on anyone in our community. My goals has been to try and represent the people and act in the best interest of our HOA.

MatthewW4 (Arizona)
Posts: 500

Posted:

Quote:

Posted By JayP3 on 09/01/2013 5:50 PM

If you recall I used the statement "I have found..." and the term "generally" in my response.

I did not cite it as fact, truth, or otherwise.

I welcome your definition or understanding.

But here's an article referring to them as ANY rule or policy:

http://realtytimes.com/rtpages/20051221_ccrs.htm

To each his own.

I read the article cited and the term "bylaws" is not even used.

One purpose of this site is to allow the exchange of ideas with a goal of improving associations. Terms such as "deed restrictions," "bylaws," and "Articles of Incorporation" each have a specific meaning that is used not only in the world of HOA's but also in real estate and in law. Using the wrong terms to describe a specific document does nothing to aid the flow of ideas and serves only to "dumb down" other users.

Personally, I do not find "To each his own" to be a very good alternative to using the correct terms.

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