New Board Rescinds Previous Permission

Started by MadisonJ • 9 replies • 2061 views

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MadisonJ (California)
Posts: 1

Posted:

I live in a gated community with private homes/lots. An old Board (10 years) ago voted "Yes" to allow colored canvas on my side gates. The new Board now says I have to remove it. Question: Can a new Board rescind a decision of past Board vote?

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By MadisonJ on 06/26/2015 4:12 PM
I live in a gated community with private homes/lots. An old Board (10 years) ago voted "Yes" to allow colored canvas on my side gates. The new Board now says I have to remove it. Question: Can a new Board rescind a decision of past Board vote?

Probably not if you can prove the prior approval. I always suggest recording any approvals granted by a board or one of its committees so that there is a permanent record.

On the other hand, if the colored canvas on the gates violates some specific covenant then there would be a valid argument that the old board had no authority to approve it.

Also, if this has been in place for ten years without complaint from the board there may be a statute of limitations argument to pursue.

KerryL1 (California)
Posts: 14,550

Posted:

Yes, Madison, so long as it was a simple rule that the Board made. Have you seen that old rule? Where? In your Rules and Regulations? Or someplace else?

To change that rule, if it was "real," in CA, the Board needs to discuss it at an open (owners are invited) meeting of the board and vote yes to change it. then, they must send out the wording of the proposed rule change to all owners for a 30-day period. Owners may send their comments within that period.

Then, the board must read those comments at an open meeting. After that, the Board can vote to change the rule--or note. If approved, the board must send out a notice about the new rule.

Did your board do all of those things that are required in our state?

PitA
Posts: 1,416

Posted:

Are / were you in violation of the actual Covenants ?

The 'previous' BOD had no authority (unless specified in said Covenants) to waive a restriction.

IMO: since you are dealing with a simple canvas cover, simply comply with your Covenants

NpS (Pennsylvania)
Posts: 4,216

Posted:

If it was approved 10 years ago, new board can't rescind approval now.

The more appropriate practice would be to grandfather your old stuff and require compliance if you replace it.

Sikubali jukumu. Read all posts at your own risk.

TimB4 (Tennessee)
Posts: 21,059

Posted:

It depends.

Was this a design change that you received written approval for or simply a rule to allow such things without prior approval?

If you received prior written approval, I would say no they can't make you take it down if the item is in good condition. However, once it needs replaced, you will need to comply with the new rule.

If this was a simple rule change, then yes, rules can change and you need to take the item down.

Have you tried contacting the Board and make them aware of this previous approval, providing them with a copy of the written approval or minutes of the decision can go a long way.

KerryL1 (California)
Posts: 14,550

Posted:

Sorry that I misread your post, Madison. Your property received approval for an earlier board to have the canvas. Is that correct? And, now the current board wants you to take it/them down.

Why do they say they want the canvas gone? Is their demand in writing? Does it refer to any of your HOAs rules? there might be a rule, for instance, that such details must be clean, untorn, unfaded, etc. Does you canvas qualify?

WillR2 (Colorado)
Posts: 29

Posted:

38-33.3-123. Enforcement - limitation.
2) Notwithstanding any law to the contrary, no action shall be commenced or maintained to enforce the terms of any building restriction contained in the provisions of the declaration, bylaws, articles, or rules and regulations or to compel the removal of any building or improvement because of the violation of the terms of any such building restriction unless the action is commenced within one year from the date from which the person commencing the action knew or in the exercise of reasonable diligence should have known of the violation for which the action is sought to be brought or maintained.

In our community, we apply this part of the Colorado Code - perhaps your state has something similar - to prevent Boards from going back and rescinding previous Board's approval either by a vote or by simply ignoring something that an owner did. Maybe we don't read it right, but by applying it liberally and giving owners the benefit of the doubt, it has prevented hard feelings. We have rules for example on what balcony doors are suppose to look like. In two units, owners made a request to the Board to put in french doors. The Board did not act and after a long wait, the owners went ahead and put them in. It would be wrong to tell them to take them out after they spent thousands of dollars.

SheliaH (Indiana)
Posts: 6,964

Posted:

Quote:

Posted By WillR2 on 06/26/2015 6:11 PM
38-33.3-123. Enforcement - limitation.
2) Notwithstanding any law to the contrary, no action shall be commenced or maintained to enforce the terms of any building restriction contained in the provisions of the declaration, bylaws, articles, or rules and regulations or to compel the removal of any building or improvement because of the violation of the terms of any such building restriction unless the action is commenced within one year from the date from which the person commencing the action knew or in the exercise of reasonable diligence should have known of the violation for which the action is sought to be brought or maintained.

In our community, we apply this part of the Colorado Code - perhaps your state has something similar - to prevent Boards from going back and rescinding previous Board's approval either by a vote or by simply ignoring something that an owner did. Maybe we don't read it right, but by applying it liberally and giving owners the benefit of the doubt, it has prevented hard feelings. We have rules for example on what balcony doors are suppose to look like. In two units, owners made a request to the Board to put in french doors. The Board did not act and after a long wait, the owners went ahead and put them in. It would be wrong to tell them to take them out after they spent thousands of dollars.

Not necessarily. How long with the "long wait"? Did those owners follow up with the board to see why they hadn't made a decision? If the owners put in the doors and the board still didn't say anything, they might have a case if the Board turns around and says they have to be changed. Generally, it's easier to see who already has what, document that and then grandfather in those homes. Everyone would have to comply with the new rules when the item needs to be replaced.

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

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By KerryL1 on 06/26/2015 5:42 PM
there might be a rule, for instance, that such details must be clean, untorn, unfaded, etc. Does you canvas qualify?

Hadn't thought of that Kerry. Got me to thinking that if the canvas gets put up and taken down seasonally, then the board could consider it a new installation each year.

Sikubali jukumu. Read all posts at your own risk.

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