Any help with wording a resolutiion is appreciated.

Started by BonnieG1 • 10 replies • 1857 views

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BonnieG1 (Nebraska)
Posts: 1,186

Posted:

I have always had a little difficulty with written communication so I am asking for help on the wording of a resolution I want to present at our next Board meeting.

First some background. Our documents do allow leasing of units for at least 90 days but also give the Board authority to make additional rules regarding the leasing of units.

I would like to present a resolution to make it prevent any leasing of a unit until the owner has lived in the unit for one year. I will consider any and all wording that anyone on this site gives me. Of course I know I make the final decision as to the wording of the resolution.

Thanks in advance for any help you can give me.

GlenL (Ohio)
Posts: 5,491

Posted:

Bonnie, I'm not sure that this can be done with a simple resolution. Even if the covenants allow for additional rules, since there is not a time limit specified in the covenants IMHO you would need to amend them first. Better check with the HOA's attorney first before you go to all the trouble to pass a resolution to get at your problem child. Who BTW probably wouldn't be affected since the lease or whatever was in place before the resolution was adopted. It would only affect renters going forward.

Studies show that 5 out of 4 people have problems with fractions

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Bonnie

I am not nor do I play a lawyer.

Your desire is along the lines of restricting rentals after the horse (original Covenants) are out of the barn.

I believe you could implement a one year ownership before leasing (we have such in our Covenants) but it cannot be done with Rules & Regulations. I say it must be in the Covenants and if added now as a Covenant change, it will apply only to those who purchase/sign the modified Covenants. It will not apply to those that signed the prior (old) covenants.

TimB4 (Tennessee)
Posts: 21,059

Posted:

I agree with Glen. You would need to amend your CC&Rs for what you are proposing. You will need a hardship clause. Additionally, it's likely it would only apply to new members that purchase after the amendment is approved.

You should probably have an attorney write up the actual amendment. However, to see if the Board is interested, you can simply bring the issue up as: I propose that we investigate establishing a residency requirement before a unit may be rented by seeking a legal opinion and suggested wording from the Associations attorney.

JohnB26 (South Carolina)
Posts: 1,001

Posted:

ditto TimB

BonnieG1 (Nebraska)
Posts: 1,186

Posted:

Quote:

Posted By GlenL on 07/31/2014 2:46 PM
Bonnie, I'm not sure that this can be done with a simple resolution. Even if the covenants allow for additional rules, since there is not a time limit specified in the covenants IMHO you would need to amend them first. Better check with the HOA's attorney first before you go to all the trouble to pass a resolution to get at your problem child. Who BTW probably wouldn't be affected since the lease or whatever was in place before the resolution was adopted. It would only affect renters going forward.

This would not be a resolution to get at our problem child. In fact it could not affect the problem child as I have already mailed the owner the present requirements for leasing his unit. Although I am not a lawyer, I can foresee a huge legal battle we could not win if we insisted the current owner live in the unit for a year before he could lease the unit. The current owner's mother-in-law lived in the unit 6 years ago when I moved in. Long story, but the current owner did not directly inherit the unit. It was sold to a non family member for a short time. (We suspect Medicaid fraud) and then sold beck to the current owner.

The goal of the resolution is to limit the number of units that are leased so that a person will not have a difficult time getting borrowing money from a bank.

BonnieG1 (Nebraska)
Posts: 1,186

Posted:

Quote:

Posted By JohnC46 on 07/31/2014 3:01 PM
Bonnie

I am not nor do I play a lawyer.

Your desire is along the lines of restricting rentals after the horse (original Covenants) are out of the barn.

I believe you could implement a one year ownership before leasing (we have such in our Covenants) but it cannot be done with Rules & Regulations. I say it must be in the Covenants and if added now as a Covenant change, it will apply only to those who purchase/sign the modified Covenants. It will not apply to those that signed the prior (old) covenants.

I agree with you 100%. That is the way I would intent it to apply. Only to those who purchase after the rule becomes effective. Without typing the entire section of our documents that refer to leasing, I will type the phrase that I believe gives the Board the authority to pass such a resolution.

......."The Board of Directors may grant waivers of the foregoing requirements in the event of emergencies or extenuating circumstances and may establish further implementing regulations........

BonnieG1 (Nebraska)
Posts: 1,186

Posted:

Quote:

Posted By TimB4 on 07/31/2014 3:01 PM
I agree with Glen. You would need to amend your CC&Rs for what you are proposing. You will need a hardship clause. Additionally, it's likely it would only apply to new members that purchase after the amendment is approved.

You should probably have an attorney write up the actual amendment. However, to see if the Board is interested, you can simply bring the issue up as: I propose that we investigate establishing a residency requirement before a unit may be rented by seeking a legal opinion and suggested wording from the Associations attorney.

I have already emailed this idea to the Board and to an attorney who (although not the Association's attorney) owns a unit and has agreed to be a consultant to the Board without charge. We do have an Attorney that we pay, but try to limit the hours we use hime.

GlenL (Ohio)
Posts: 5,491

Posted:

Bonnie again I would suggest you consult the HOA's attorney and not rely on the free advice of a fellow homeowner, attorney or not. You are attempting to change the fundamental covenants that people purchased their units under, with a rule, you want lawsuits IMO this will garner you lawsuits.

Studies show that 5 out of 4 people have problems with fractions

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By GlenL on 07/31/2014 4:24 PM
Bonnie again I would suggest you consult the HOA's attorney and not rely on the free advice of a fellow homeowner, attorney or not. You are attempting to change the fundamental covenants that people purchased their units under, with a rule, you want lawsuits IMO this will garner you lawsuits.

I am not nor do I play a lawyer.

I agree with GlenL. Do not try this with a Rule and/or Regulation change. Do it with a Covenant change.

JohnB26 (South Carolina)
Posts: 1,001

Posted:

Bonnie,

You have been PROPERLY informed that said change should be a COVENANT change.

If you proceed you would be committing MALFEASANCE as you now KNOW (or should know) it would be an existing COVENANT VIOLATION ON YOUR PART to attempt a 'back-door' unvoted covenant change.

Malfeasance is NOT covered by your D&O insurance.

Let the toric ka-ka freely flow ............................................

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