Guidelines and Covenants

Started by TracyT • 8 replies • 1693 views

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TracyT (Maryland)
Posts: 228

Posted:

Hi all,

A common post theme on this forum is that the Guidelines can’t be more restrictive than the Covenants. Another common theme is that Covenant disputes are typically handled under “contract” law.

Can some one please elaborate on the basis for these subjects or provide case law etc?

Thanks.
Tracy

TracyT (Maryland)
Posts: 228

Posted:

Don't everyone jump in at once :-). I did find in MD that covenants = contract.

Now how about some guidance on finding the contents of guidelines, rules or policies? Any references would be appreciated. Tracy

StephanieF1 (Maryland)
Posts: 8

Posted:

I am in the state of MD and I just did a lot of research for my community online with the www.msa.md.gov website. This gives you access to many legal documents and you might be able to find your guidelines on line. You can type in the name of your development and all kinds of DEEDS, DEC RES, etc comes to you. You do need to request a password to access the info but it is quick.
I am in the process also of revamping our "Declarations" into By-laws.

Good luck. Stephanie

MelissaP1 (Alabama)
Posts: 13,836

Posted:

There are typically 3 documents associated with a HOA. Those are: 1. Incorporation (where filed at state to be either For/Non-Profit corporation). 2. Convenants and Restrictions (Filed at the County level and goes with the Deed). 3 By-laws. (Don't require filing in most states and are kept amongst the homeowners/BOD). There are other related documents like the Archectual Control Committee (ACC) but that is a different entity and discussion.
The By-laws are the "general" guidelines of the HOA. More like the every day rules such as no noise after 10 PM etc... The CC&R's are more official rules/laws. They allow for the liens/foreclosure for non-payment. The By-laws and CC&R's are almost EXACTLY alike. I've actually gotten confused on which one I was reading! However, there are a little more "pickiness" in the by-laws. If there is a conflict between the two, then the CC&R's override the by-laws.
Why I recommend NOT going with a Real Estate lawyer when dealing with the HOA... A Real Estate lawyer handle Real estate transactions. They look up liens and make sure the sales contracts are accurate and binding. It's a specific contract between two parties on the sale of property. On the other hand, the HOA is a coporation (non/for profit). It has to deal with business laws. There are a GROUP of homeowners involved when it comes to violations. It's NOT one on one. The CC&R's act as a contract amongst ALL the homeowners so that the homeowners in association can enforce rules against a violator. Essentially, You have one single document adhering a whole group of people to one standard.

Former HOA President

TracyT (Maryland)
Posts: 228

Posted:

What I'm really looking for is some back ground on "A common post theme on this forum is that the Guidelines can’t be more restrictive than the Covenants."

The board has authority to make rules and/or clarify the CC&R. In our case they changed the CC&Rs when they issued the guideline; added rules for items not called out in the CC&R, over interpreted other areas and changed voting requirement (that BTW weren't published in the guideline).

Where is the line drawn with respect making rules vs. changing the CC&R?

Thanks.

BradD2 (Florida)
Posts: 418

Posted:

Changes to the governing documents often require extensive community approval. Are you saying they changed the covenants without getting a community vote?

TracyT (Maryland)
Posts: 228

Posted:

Here are a couple of examples. Please let me know if you think its a change or just implementing a "rule".

The CCR says that if your priveldges to the common area is revoked you can't be denied reasonable pedistrian ingress/egress to your lot by way of the common area. The guideline says common areas are for pedstrian use only.

The CCR does not have specific use restrictions for hot tubs/spa, permanent wading pools etc. but the guideline says they have to be approved before installation. (This might fall under exterior change but landscaping is not specifically called out in CCR either and the guideline states approval is not required).

The CCR says no lawn ornaments, temporary structures and no stand alone structures other than a shed. Guideline says lawn ornaments under 3 ft. don't need approval. Although the guideline doesn't give guidance on pool houses, gazeboes or fountains there are a few of them. (Gazeboes are all white)

Althought the guideline document does not call out the voting requirement to change it the By-law says anything that goes out to a vote (except CCR, by-laws, articles of Inc) requires a quorum of 15% of the members with a 51% of the members, at the quorum, will settle the matter. The board applied a voting requirement to change the guideline as needing 51% of the members in favor of the change.

I appreciate your thoughts. Thanks.

RogerB (Colorado)
Posts: 5,067

Posted:

Tracy, I see it thusly,
1) no conflict since they refer to different items.
2) no conflict, in fact the CC&Rs may also state that ACC approval is required for all external modifications.
3) Conflict - no lawn ornaments may be approved. There may be a problem with enforcement of restrictions regarding stand alone structures.
4) Conflict - the guideline clarifies it takes 51% (IN FAVOR) but then eliminates the quorum requirement which should have been maintained.

TracyT (Maryland)
Posts: 228

Posted:

Thanks Roger,

As a follow-up on:

1) So this is case where a rule was implemented, right? Just my opinion here but despite that I don't have kids, the kids in the neighborhood were the only ones use(d) those areas with dirt bikes and 4 wheelers. There's lots of room them and they never rode on anyones property. I was thinking that there might of been compliants and that would be a valid reason to prohibit them but given the make of our community I have my doubts. Oh well.

2) I take your point about exterior modifications but shouldn't landscaping be included for approval as well? That would be more likely visibly then someone who put a hot tub in by their back door . . .

4) The guideline actually does not clarify the voting in fact it wasn't include in the document at all. The 51% in favor was "applied" when I requested a change to the guideline.

Thanks again.
Tracy

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