"Guidelines" for amending CC&R's?

Does anyone know what the guidelines when considering adding new more restrictive covenants to the CC&Rs concerning individual private property use? What is allowed to be added if your CC&Rs do not mention subjects? (Not asking for the procedures on adopting new restrictions or votes necessary to adopt) Want to know what is actually allowable to be added to an regarding personal property us CC&R? or is your opinion that the sky's the limit?

(I know it's a legal question but I'm interested to see whether anyone here follows any guidelines within their own HOA in that regard or has any advice on what to do or not to do?)

I'm asking what needs to be considered when attempting to add completely new and more restrictive covenants to private property usage? Do you make sure it relates to what is already in place in some way?

Specifically adding brand new more restrictive covenant to personal property within the neighborhood. (not common areas).

* I started a new post because Tim and myself got a little sidetracked on a earlier post. After this I'm not going to think about this stuff for a bit because my brain needs a rest!, lol!

**some famous court cases were mentioned in an earlier post by some (thanks) but they were in regard to adding mandatory assessments being added after the fact, not a new restrictive covenant being added regarding private property.

Thanks for any help

I can see how mandatory assessments for care and maintenance of the common areas would be allowed by courts, in the referred to court cases of previous post. (They were not more restrictive on personal property usage, they were needed to car for common areas that all benefited from and held obligation to.)

Ideally, the Board would first have the association attorney review the CCRs to see what needs to be updated to reflect current law, as well as poll the homeowners to see what type of changes they'd like to see. From there, the association attorney could draft some new amendments, the board could make some suggestions and then send them to the homeowners for their input. Use the comments to revise the draft, the board votes to accept them and then they're sent to the homeowners for a final vote - along with an explanation on why some suggestions were accepted and others weren't.

None of this happens overnight of course, which is why many CCRs or Bylaws may give the Board the authority to enact additional rules provided they don't contradict the current governing documents. And that's where you start - look at your documents to see what they say regarding CCR revisions so you'll know if you are really talking about CCRs or something else.

If it's something else, perhaps you should ask the Board what prompted some of the new regulations. For example, cars are personal property, but if people are parking in a way that's damaging the common area (e.g. parking on the grass can kill it and that's more money to replant it), it may be necessary to set rules that are more specific as to where people can and can't park.

Shelia thank you for your response. I understand about the procedure to amend. I'm referring to adding a brand new more restrictive covenant {completely out of the blue). Applying only to ones personal property not affecting common areas, not affecting property values (not appearance of house form street nothing like that).

I'm asking if you have parameter you need to stay within, guides you consider you must remain within pertaining to your original governing Doc's/CC&Rs/contract.

I know the question is not commonly asked. I don't expect a lot of answers because maybe the issue hasn't come up for any of you. Just throwing it out there in case.

thanks everyone I appreciate your help

Emma,

The Association or a member can propose any amendment they want.
It's up to the membership if it is adopted.
It's up to the courts if the amendment is deemed enforceable (however, someone would need to bring it to the court first).

One of the hot amendments discussed on this site have been rental restrictions. Therefore, there is likely more case law on rental restrictions and their validity than on any other type of amendment.

One of the biggest mistakes is amending the wrong document. If the wrong document is amended it may be in conflict with a document that has a higher precedence. When this occurs, the document (or law) that has the higher precedence must be the one that is complied with unless that document defers control (authority) to the lower document.

Understanding that your main purpose is to see if amendments can be retroactively enforced, I offer the following links:

Retroactive Enforcement from Davis-Stirling.com

VILLA DE LAS PALMAS HOMEOWNERS ASSOCIATION v. TERIFAJ 2004 CA case (mentioned in davis-stirling link)

Nahrstedt v. Lakeside Village
Condominium 1994 CA Supreme Court case about ban on pets. They ruled a ban was allowed.

Can an HOA Make a Retroactive Rule? from a management company blog

TADDEI v. VILLAGE CREEK PROPERTY OWNERS ASSOCIATION INC 2012 NC case about validity of amendments to governing docs.

Emma,

Your biggest issue, that I see, with the pet restriction is that you currently don't have 3 dogs. If you did, you could argue grandfathering is needed. However, since you don't, if the amendment is deemed to be legally adopted, you would need to comply.

Again, I'm not an attorney and I do not work in the legal profession.
Your issue is unique in that there is dispute who is in charge of the Association.

However, regardless of who is in charge, I would think that if amendment procedures were followed, notice properly given, meeting held, etc. then the amendment would be valid. I base this on the typical ability of a percentage of the members being able to call a meeting of the membership for a specific purpose. Of course the devil is in the details and the details are in your governing documents.

Yes, I understand. Your right my issue is UNIQUE to say the least. I use that term devil is in the details often. There are soooo many "if's" in my situation. But you have clarified and reinforced some points for me.

*While the pet issue is important to me personally, there are many other important changes they are attempting to add in. The pet one was just the easiest example to use----same principal though.

Emma Your question : " . . . the guidelines when considering adding new more restrictive covenants to the CC&Rs concerning individual private property use ? ... Want to know what is actually allowable to be added to an regarding personal property ... when attempting to add completely new and more restrictive covenants to private property usage ? . . . Specifically adding brand new more restrictive covenant to personal property within the neighborhood. (not common areas). "

Let me de-construct the issue : "Guidelines" are like nebulous useless tools of sociologists, although some might say such is also "standard of review" applied by an appeal court adjudicator as to the decisions of lower tribunals, administrative bodies etc.

The more practical issue is whether proposed TIGHTER C.C.R. restrictions are or are not 'intra vires', and specifically also contractually consented to run with title to the targetted private properties. Some have called the latter issue 'adequacy of assumption' or adequacy of contracted consent. ( "I consented to an oil change, not an engine replacement")

I respectfully think it's a mistake to conclude that HOA claim to regulate private property - the targetted private property above - is any different from HOA claim to govern common lands unless the common lands are flat-out legally owned by such HOA or by named Trustees in trust who happen to be the Officers of the HOA.

No apparent analytical distinction, for example, was cited as relevant in Dreamland v Raimey 2010 ( Arizona Court of Appeals ) where a voluntary HOA was said to have no common land to justify new compulsory fees. To the judicial approach in Dreamland & Lakeland etc , voluntary deference or at least consideration may well be given outside Arizona in the absence of guidance from direct legislation & judicial decisions. Litigators in that absence may well search far and wide for persuasive analysis.

I have been watching my own HOA head towards the illegality ultra vires territory for some time. If some sort of litigation eventually occurs I guarantee here that the analysis will be the same whether it is about private end user property or common land activities : " Did the owners consent expressly or by implication to an increased burden or even to any burden at all ?" Courts that follow a line similar to Dreamland, Lakeland and Evergreen might not allow such heavier burden without brand new consent.

Courts elsewhere might follow similar approaches without expressly citing those three cases ( or they might not ).

1500 miles away from South Carolina in March 2014 a court struck down a heavier burden / more restrictive CCR among two different versions in a test of a hybrid condo with HOA covenants. At issue was attempted enforcement of uniformity of fencing on a targetted end-user private property ( Oxford CECC #73 v Greenbury 2014 "(31)...the court is mindful of the principle that the least restrictive covenant that minimally interferes with the normal use and enjoyment should be applied." The judgment did not cite Dreamland nor Lakeland, but one can seen a similar judicial concern about oppression. Details at at http://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&catid=2&id=18052#18052 )

AS I understand from my attorney who represents my interest in current litigation, Florida requires 100% agreement of all parcel owners and all institutions with claims on the property to add a new restrictive covenant.

Amendments can only "flesh out" existing restrictions i.e. if there is some restriction on pets, one can amend to allow "reasonable" qualifications /clarification of the restriction already present or amend to enhanced restrictions consistent with superior laws. As others have mentioned, courts will likely apply the principle of least restrictive application in a dispute favoring minimal interference with the enjoyment of one's property.

The general rule is that the Covenants have been declared by courts to be a contract "running with the land", and retroactive changes to a contract by amendment are unlawful unless affirmed by 100%.

My HOA is unlawfully attempting to enforce restrictions that do not exist by making "rules" and persuading naive owners of the legality of that. They have also attempted to restrict dogs' presence to certain open common property by erecting signage, similar to that mentioned by another writer. Per CCR's, dogs are only forbidden to be in buildings and congregate recreational areas and can only be further restricted by 100% agreement. Signs are ignored.

Gwen,

Thank you very much for sharing your own situation. I think you hit the nail on the head when you said "persuading naïve owners of the legality",that is exactly what is happening in my community.

Only one other neighbor truly understood what is happening here, and he suddenly had to move out state. The others really don't understand what's going on and are easily manipulated. So the handful in control are "getting away with all kinds of wrongs". (or so they think! lol)

thanks again and good luck in you situation

ditto timb

Bob,

Completely agree with your statements of facts.

I hope at some point in time my neighborhood can come together in a positive way. That is my ultimate goal.

But my property rights are at stake here and these people cannot assume we will be compliant with the imposition of new amendments if they do not have the authority to impose them on my personal property.

Wish me luck!

Emma,

Bob is indeed very knowledgeable. However, the cases he provided are from Canada.
They likely will have zero bearing in the U.S.

Agree or not, Glen is correct that contracts can be modified and amended as long as the amendment does not violate the existing law of the land. See:

Covenants, Conditions & Restrictions from findlaw.com

In South Carolina unlike Some other states Fines cannot be added if they are not mentioned in the original CC&Rs (for single family homes). (I'm sure SC experts that regularly post here, can confirm that with that fact, right?)

(My crazy BOD is adding Fines and the ability to lien your home to collect the fine into the proposed new amended CC&Rs. NO MENTION of fines anywhere in the CC&Rs.)

But they are going to do it anyway they don't care.

Gwen,

Again, I want to thank you for posting your knowledge of a similar experience to what I am going through. In SC they use FL cases as references sometimes. It was good to hear someone confirm what I had researched myself. I hope you let us know how your case turns out.

Emma,

No problem. I have zero issue agreeing to disagree, as I'm not directly invested in the outcome. I'm simply providing an opinion based on what information has been provided, personal experiences and any research I have done. If any of those change, my opinion could change.

The people involved are you and your neighbors.

If the vote hasn't happened, start gathering proxies. It's easier to defeat a proposed amendment to the CC&Rs then to have it pass, as less votes are needed to cause the defeat.

If the vote has already happened, you will likely need to challenge the amendment.
There may or may not be a statute of limitations on that challenge (so check with an attorney).

Thanks for the compliment.

The four Lakeland line of cases cited above ( as discussed / the approach supported in Dreamland v Raimey 2010 Arizona ) are respectively from Illinois, Nevada, Nebraska & Washington.

Without copious identifier I have not cited Canadian cases. The new hybrid condo/HOA sample above ( discussed at http://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&catid=2&id=18052#18052 ) as indicated illustrates that judicial analysis of fairness or reasonable expectation may follow a certain similar course in far removed jurisdictions. ( the reference to : we don't feel comfortable about upholding the more restrictive version above the rival less restrictive one ). It is the judicial mindset that I was referring, not any deference to any precedent.

To hear that VA outcomes may vary by county, is an eye opener for me. But disputes only miles apart admittedly can serve up a variety of factuals & d.i.y. documents varying widely in age and competence.

A bigger risk for Emma and dissenters (besides cost), is the toxic retaliation & defamation risked even if they prevail in any formal ADR or adjudication process.

correction typo "took a homeowner to court to enforce a newly added restriction upon him."

Oops, should have typed advise.

Tim,

I agree of course, attorneys are like doctors some really good, some really bad. That is why I think more than one opinion should be sought maybe even required by HOAs before engaging a entire membership into litigation. BODs should be open to that.

Some BOD's rely on their attorneys advice so heavily and let them think for them and make decisions for them that maybe are not in the HOA's best interest. (Naturally all attorneys have what some refer to as that "weasel clause" to protect themselves from responsibility.)

Some BODs in new HOAs with no prior experience and rely completely on a HOA Attorney's advice. I'm sure you agree some have been purposely led down the wrong road and taken advantage of. I've heard people on this forum say if a lawyer advises or puts their name on it then it must be right and legal. People are naïve when it comes to Lawyers sometimes. Some lawyers are opportunists. I think it is a real problem. They can create more problems than they solve sometimes.

Some HOA specific attorneys in my area are manipulative and lack ethics. Some work with hundreds of management companies and hundreds of HOAs. Some simply just don't care if things lead to expensive litigation because they get richer, they paid by the hour. They benefit by conflict within the neighborhoods. The more we fight the more they make.

I realize the final choice is the clients but often the clients are putty in their hands. They hear that they work with so many associations and think the attorney is such an expert so they would never sway them in the wrong direction or deceive them.

Emma,

I wish you luck.

I wish you luck too Emma... Sometimes you can't teach people until they forge their own path. Some of us just know the path your on and are watching you get lost or not following directions... Off to the Wizard you go... We will be on the yellow brick road and hope you notice the color of your road soon...

Thanks Melissa,

Sometimes with experience comes knowledge sometimes people just become set in their ways. Doesn't seem like you like a real challenge or are open to looking at things fromm other peoples vantage point. (Wonder what it was like to have you as president.) I've tried to be polite and civil to you but I give up. You just keep up with the silly little insults chiming in when you feel you have a partner not very brave. Never a real debate or point just silly statements with no substance. You must feel threatened or something. Or maybe its how you have fun. You don't like to hear people speak their mind, I have noticed that. It's a common problem in HOAs.

I like to think outside of the box, we seem to be very different. Some people are just not open to new ideas or change, set in their ways, another common problem in HOAs.

Please do not answer back with--most people don't participate I know and agree that is a common problem too. Everyone should participate.

I realize their are many issues and problems to be addressed within HOAs. I feel if some of these problems were addressed better then maybe everyone would live a little more cohesive. Everyone needs to feel their opinion matters in a community. Often this does not happen. Sometimes resentment and frustration sets in members don't feel its worth it to even participate or show up. It's too bad and I'm hoping to "eventually" change that in my neighborhood anyway.

Everyone in my neighborhood got along when the original developer was here and the HOA not even in the picture at all. Once this HOA BOD "power trip" came into play so did the problems. "Neighbors at War" now it is sad. I am going to continue to make suggestions to make things better and not allow a bad BOD to treat people unfair us or anyone else I see it happening to.

And I will not allow your negativity to stop me from learning from some of the wonderful informative posts I read and helpful ideas I find here.

Sorry it bothers you so much.

(Like I told Dorothy no one if forcing you to read my posts if you don't want to. To be honest I have skipped over yours a lot) You don't own this forum do you?

Worth looking at as much as you can as a knowledgeable consumer, bearing in mind anyone thinking about self-represented is risking big time pain.

Notice that one of Tim's interesting California citations above is about a multi-storey pet-owner who prevailed in Motions type court ( no trial, summary injunctions sought) with some post-purchase similarities to Rawlinson. But she lost in round 2 after the "Declaration" was next amended to retroactively skate a total pet ban onside. ( Villas de Las Palmas v Terifaj 2002 ) and sucks up the corporation's loser costs from round 1.