Circumventing a Covenant with a "Policy"

Started by EW4 • 10 replies • 2023 views

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EW4 (West Virginia)
Posts: 95

Posted:

My community has the following covenant:
“No trailers, campers, camping trailers, motor homes or unlicensed vehicles shall be permitted within the properties unless stored in garages.”

Now this covenant was “enforced” until a couple of residents pushed back and the majority of the board ran for the hills. For the last two years the majority of board has ignored this rule. In fact, sitting board members have openly violated the rule and for long periods. Instead of following the covenants to amend or change a covenant the board recently created a “policy”. In the board's message they stated, "The covenants state that "no trailers are to be parked on the properties." The BOD find this to be at times unreasonable."

There is nothing in our CC&R that allow for a "policy". This really looks like the board is trying to circumvent the covenant. Furthermore, they have introduced, “suspension of access”. Nothing in covenants covers suspension of access. This policy concerns me greatly because possible litigation and/or what is next.

I would appreciate hearing thoughts on this from the HOATalk community. Thank you.

Policy released by the board verbatim,

“In accordance with Article X, Paragraph (e) of the HOA Covenants a procedural policy has been established for clarification of this article regarding the temporary placement of utility trailers, boat trailers, RV (camper – trailers), RV motorhomes and alike on individual homeowners lots. For the purpose of this policy such items will .be identified as “Personal Property” or PP

1. The term “TEMPORARY” means not to exceed (NTE) three calendar days. The purpose of this three day time limit is to allow the homeowner an opportunity to carry out any basic maintenance requirement on their trailer, motor home, boat etc. or the use of their utility trailer for real estate property maintenance requirements. Each three day access must be followed by either storage of the PP in the homeowner’s garage or out building or remove the PP from the Federal Hill Subdivision.

2.When trailers or motor homes are being used for enjoyment (camping or traveling) purposes the Federal Hill resident owner of the PP is allowed to bring the PP to their residence for loading, when departing on a trip and unloading when returning from a trip. The time allowed for this purpose is the 72 hour (3 day) period just immediately preceding their departure or just immediately after their return to their residence. After which the PP property must be stored in the residence garage, out building or remove the PP from the Federal Hill Subdivision.

The Board of Directors seeks complete cooperation from individual residents having PP and without which there will be no temporary placement granted. And any determination of violation of this policy will lead suspension of the individual’s access. Along with this continuing violation can lead to legal action by the HOA. It is through this expression of reasonableness that this well-established policy within HOA be publically identified to eliminate website confusion and misinterpretation.”

LarryB13 (Arizona)
Posts: 4,099

Posted:

EW,

The covenant you quoted does not prohibit the PP from being in your development; they are allowed if stored in a garage implying that they may enter and exit the development when not in the garage. Trying to levy fines each and every time someone pulls his PP out of the garage for a few minutes would consume an enormous amount of resources. Under the business judgment rule, the board gets to determine which battles to fight and which to sit out. Only the most foolish of boards would try to fight every battle.

Most covenants have a provision for allowing members to enforce them through civil action. Funny how everyone wants the association to act on their behalf but very few are willing to put up their own money.

The part about "violation of this policy will lead suspension of the individual’s access" needs some explanation. Are they talking about trying to keep violators from entering the development and going to their individually owned properties? Or are they trying to say that violators cannot drive their PP into the development? The intent is not at all clear.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Larry raises a good point in that such are not banned from being in the community. So one pulls their vehicle out of the garage then lets it sit in the driveway to load "stuff/people". This raises the question of how long is to long? I say 72 hours is to long. I would go with 24 hours. Either way, I think the BOD could define how long is to long and not be circumventing the Covenant.

TimB4 (Tennessee)
Posts: 21,059

Posted:

EW,

As others have pointed out, the policy sounds reasonable and isn't necessarily in conflict with the covenants.

If there is a conflict, then the covenant is what would have to be followed.

However, to prove the conflict you may need to take the issue before the courts.

I do not own an RV. However, from talking to those who do, 48 to 72 hours is about right for getting ready and returning from a trip. Expecting that the time starts when you return, many will bring the vehicle home on day one, clean and pack/unpack on day 2 and start the trip or move the vehicle to long term storage on day 3.

CyrstalB (Maryland)
Posts: 457

Posted:

If I understand your question/concern, you are asking if the board can establish rules and regulations, outside of your CCR's. The answer is found in your By Laws. It will be under the heading of "Powers and Duties of the Board of Directors" or something to that nature. In ours, it is in the first section, and then #2 states that they also have the authority to suspend the rights of a member (HO) if they are in violation etc.

It's been my understanding that where the CCR's are vague, the board has the authority as spelled out in your By Laws, not the CCR's. They can create reasonable rules or regulations as long as they do not circumvent said ccr's and state law etc.

So if your concerned about future litigation, and as a HO, you should be, it wouldn't seem they have stepped out of their bounds. What you posted as the new rule seems pretty reasonable to me, the big question is whether they are prepared to enforce it 100%.

Conversely, it would be an interesting thought to see if you could get the % needed to amend your CCR's and allow for them to park anywhere, anytime. But I doubt that would fly. Good luck!

EW4 (West Virginia)
Posts: 95

Posted:

Quote:

Posted By LarryB13 on 09/05/2015 6:54 PM
EW,

The covenant you quoted does not prohibit the PP from being in your development; they are allowed if stored in a garage implying that they may enter and exit the development when not in the garage. Trying to levy fines each and every time someone pulls his PP out of the garage for a few minutes would consume an enormous amount of resources. Under the business judgment rule, the board gets to determine which battles to fight and which to sit out. Only the most foolish of boards would try to fight every battle.

Most covenants have a provision for allowing members to enforce them through civil action. Funny how everyone wants the association to act on their behalf but very few are willing to put up their own money.

The part about "violation of this policy will lead suspension of the individual’s access" needs some explanation. Are they talking about trying to keep violators from entering the development and going to their individually owned properties? Or are they trying to say that violators cannot drive their PP into the development? The intent is not at all clear.

LarryB13,

Thanks for your comments on this. I agree the board must be careful about the battles it takes on. I certainly don't think fining every time a piece of equipment of this type is present makes sense. As a former board member of 7 years I do understand the costs especially on civil actions. The board was not enforcing the covenant as written and now not enforcing the new policy. There are several homes with this equipment on their property and it is not garaged.

The intent on access is extremely unclear and well they are not rushing to make it clearer.

EW4 (West Virginia)
Posts: 95

Posted:

Quote:

Posted By CyrstalB on 09/06/2015 4:49 AM
If I understand your question/concern, you are asking if the board can establish rules and regulations, outside of your CCR's. The answer is found in your By Laws. It will be under the heading of "Powers and Duties of the Board of Directors" or something to that nature. In ours, it is in the first section, and then #2 states that they also have the authority to suspend the rights of a member (HO) if they are in violation etc.

It's been my understanding that where the CCR's are vague, the board has the authority as spelled out in your By Laws, not the CCR's. They can create reasonable rules or regulations as long as they do not circumvent said ccr's and state law etc.

So if your concerned about future litigation, and as a HO, you should be, it wouldn't seem they have stepped out of their bounds. What you posted as the new rule seems pretty reasonable to me, the big question is whether they are prepared to enforce it 100%.

Conversely, it would be an interesting thought to see if you could get the % needed to amend your CCR's and allow for them to park anywhere, anytime. But I doubt that would fly. Good luck!

Crystal,
Our by-laws don't allow the board to make a rule like this with respect to covenants. I was on this board and per the attorney the change has to be made to the covenant. I agree that the rule is reasonable (and maybe a little generous) as it alots 144 hours total for packing/unpacking for each trip!
As for enforcement, well they are not enforcing the policy either.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

EW

The fact that the association allows these vehicle to parked in their garage says these type vehicle are allowed to come and go on the streets of the association thus the question is for how long are they allowed to be out in the open. Parking the vehicle in the driveway while one gets out to say open the garage door, lower antennas, whatever is allowed thus we are simply trying to define how long can it be parked in the driveway. This is not overriding the Covenant. Overriding the Covenant would say they are not allowed on the streets of the association, they can be parked anywhere on ones property, etc.

I do agree 72 hours is to long. Also opens the door to 72 hours parked. Gone one a one day trip. Another 72 hours. Gone on a one day trip. Another 72 hours,etc. Basically parked in the driveway 6 out of 7 days.

EW4 (West Virginia)
Posts: 95

Posted:

Quote:

Posted By JohnC46 on 09/06/2015 10:37 AM
EW

The fact that the association allows these vehicle to parked in their garage says these type vehicle are allowed to come and go on the streets of the association thus the question is for how long are they allowed to be out in the open. Parking the vehicle in the driveway while one gets out to say open the garage door, lower antennas, whatever is allowed thus we are simply trying to define how long can it be parked in the driveway. This is not overriding the Covenant. Overriding the Covenant would say they are not allowed on the streets of the association, they can be parked anywhere on ones property, etc.

I do agree 72 hours is to long. Also opens the door to 72 hours parked. Gone one a one day trip. Another 72 hours. Gone on a one day trip. Another 72 hours,etc. Basically parked in the driveway 6 out of 7 days.

JohnC46,

Agreed. The issue has always been around the Trailers, Campers,... in their driveways vice bringing in or out of the community. Not for the unloading/loading or while doing maintenance. But rather keeping them parked in the [driveway] for days and in some cases 60-90+ days.

The last part of your comment,...wow! That went on many times before the "policy" and the door is now wide open for what you pointed out.

CyrstalB (Maryland)
Posts: 457

Posted:

The covenant indeed states they must be "stored" in garages.

On that statement alone, in court, I will testify that I do keep my RV "stored" in the garage.

When I am ready to use it, I take it out of "storage" and park it in my driveway so that I can prepare to "use" it. I am not "storing" it at this point but actually "using" it.

Now since I like to "use" it every other weekend, my "usage" requires it to be in my driveway more times than not, especially in the summer season.

So now my HOA board wants to control how often or how long I can prepare for my trip. Well that sucks, but hey, I signed a contract and I am in an HOA and must abide by the rules.

The board can make reasonable policies where the CCR's are not specific and this is a good example. This particular article only states where it can be stored. So your board came up with a policy that takes the article further. That is allowed.

EW4 (West Virginia)
Posts: 95

Posted:

Quote:

Posted By CyrstalB on 09/07/2015 5:31 AM
The covenant indeed states they must be "stored" in garages.

On that statement alone, in court, I will testify that I do keep my RV "stored" in the garage.

When I am ready to use it, I take it out of "storage" and park it in my driveway so that I can prepare to "use" it. I am not "storing" it at this point but actually "using" it.

Now since I like to "use" it every other weekend, my "usage" requires it to be in my driveway more times than not, especially in the summer season.

So now my HOA board wants to control how often or how long I can prepare for my trip. Well that sucks, but hey, I signed a contract and I am in an HOA and must abide by the rules.

The board can make reasonable policies where the CCR's are not specific and this is a good example. This particular article only states where it can be stored. So your board came up with a policy that takes the article further. That is allowed.

Unfortunately, no one in this sub-division can store their RV's in their garage. Most homes have 2 car garages a few have 3. No way to get a 20, 35,.. foot RV in them. Now the utility trailers can easily fit in their garage however many refuse to comply on that.

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