CC&R Questions

Started by TomA6 • 2 replies • 1496 views

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TomA6 (West Virginia)
Posts: 3

Posted:

Hi, I recently became the board member of the HOA here, this may have been a mistake! Here is the question in short. We have CC&R's, I don't think that anyone has followed them in many years like about 20 or so, they have never been updated or enforced, and clearly some of them are in violation of Federal and state laws, then there are things that the previous HOA board approved that are a violation of the CC&R's. Now our current president wants to go after some of the other violations. Can he do this if others are in violation that have already been approved? example: some have sheds, these sheds are not allowed by the CC&R's, however they have been approved by the previous board, now the current president wants, to go after several people for say a boat in the driveway, or a trailer, which are all in violation as well. Now these violations have been there for years, the boat and the trailers etc. I have read the law, and it is not clear, it does say that violations have to be enforced equally, but can this be done? with things that have been approved that are in violation? Oh, I almost forgot to mention, out of the 36 homes there are at least 33 of them with at least one violation Such as Propane tanks in their back yards, "No above ground utilities" our president does not seem to thing a 500 gallon propane tank is a utility. I feel as if someone is going to get sued....State of West Va.. Thanks Tom

SheliaH (Indiana)
Posts: 6,964

Posted:

There could be a number of reasons why the CCRs haven't been enforced and if no one's said anything until now, it may be you have some CCRs that need to be amended or dropped altogether (if no one has any objections to sheds, why should the CCRs say you shouldn't have any?)

You do have to apply the CCRs equally, but in some cases, like the sheds, you may be better off grandfathering in those people (after all, if they got permission from the board, it would seem they did what they were supposed to do, but the board failed to follow the CCRs, which is part of its fiduciary duty!)

The people who are grandfathered in can keep what they have, but should be told if they want to replace anything, the Board will have to review and approve the project before the work is done and that work must comply with the CCRs

This would be a good time to take a look at ALL of the CCRs and poll the homeowners to see which ones should be amended or dropped. You may have a few that are unenforceable, so be sure to have your attorney review them and make recommendations. Get a committee together to coordinate all this and then the homeowners can review the proposed changes for final approval - check your CCRs to see how this should be done. While you're at it, check if you have a rule enforcement policy and remind people of what that is. It may also require some tweaking, such as whether fines will be used, how much they'll be, appeal process, etc. Personally, I'd also add language about alternative dispute resolution being available before everyone dukes it out in court.

(Yes, you'll have to look at the very ones that haven't been enforced because that's all you have!)

PS - it wasn't a mistake for you to join the Board. I'm sure you did it because you noticed all the violations and now want to come up with a way to address it. That's what Boards are supposed to do - it's just a matter of coming up with a process, applying careful thought to it and (most importantly) getting the homeowners involved. Good luck!

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

TomA6 (West Virginia)
Posts: 3

Posted:

Thanks for the answer, I don't think fines will help, I have read the State law "WV non profit act" and it clearly states that fines cant accede the annual assessment, which in our case is $100.00 a year, in the declaration it states that this fee cannot be raised, good luck getting people to vote that one out. The bylaws say they can fine $25.00 a day, that has to be changed to go by the law. In other words the enforcement policy is against the law!! Not to mention the Lawyer told us he would not fine anyone, because one day we might be in there position, I think he has a point, he told us the only real reason there is an HOA in WV is for road maint. It seems that people in this neighborhood, don't really care....

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