Banned work vehicle

A copy of the CC&R's is almost always required to be available to the buyer/prospective buyer. Do you not have a copy? You're in a tough spot, but I'm afraid it was most likely due to your lack of DD.

We do not allow vehicles with commercial lettering. Some of our homeowners have lettering on their vehicles - The cover the lettering with blank magnetic signs when parked in the neighborhood. Could that work for you?

So, what is the wording of those sections of the Bylaws?

I thought by-laws shouldn't be able to ban things - that is what a covenant is for. I cannot remember where (it may have been Florida specific) but I had read that where some state statutes govern C&Rs, some slick lawyers would try to put clauses in the covenants to reference the by-laws because the by-laws typically have a lower threshold to change. My neighborhood had tried that. The covenants would require a whole process for ratification and at least a majority of homeowners while the by-laws required quorum and a majority of board members (or something like that).

Saying it and actually amending the documents are two different things.
Actually, it sounds more like a Republic, not a dictatorship.


Because in my, and apparently NPs, experience, the typical issue about commercial vehicles (which we all know the Board defines what that means) is the appearance of commercial lettering. Many HOAs in the northeast (perhaps elsewhere, but I know it's common up here) will allow said vehicle providing the commercial signage is removed or (tastefully) covered. In fact, many Realtors utilize magnetic signs as the advertisement and simply pull the magnets off when they park that vehicle at their home (if it resides within an HOA).


And the question was asked what they were.


I expect that you meant based on


I have seen many developments (mainly Condominiums, but HOAs also) that make rules and regulations part of the Bylaws. I personally disagree with this practice. However, it is done and, per FL 718.112, some State statutes even mention this as an option for Bylaws. Here is the language from that statute:

3) OPTIONAL PROVISIONS.—The bylaws as originally recorded or as amended under the procedures provided therein may provide for the following:

(b) Restrictions on and requirements for the use, maintenance, and appearance of the units and the use of the common elements.


State statutes vary. Some States allow amendments to the Bylaws to be done by the Board. Some, as you pointed out, require membership approval.

FL 718.112 reserves the right of amending Bylaws to the membership, but only if the Bylaws are silent on how they should be amended.

FL 720 doesn't address amending bylaws

FL 617.0206 reserves the right of amending Bylaws to the Board unless otherwise provided in the articles of incorporation or the bylaws.

Zach

Look for wording on commercial vehicles. My last HOA had a ban on commercial vehicles being parked over night (unless in the garage). We had two identical vehicles. One was a Mommy Soccer van. The other was an airport shuttle with signage. Based on the signage alone, one was a commercial vehicle.

We had another issues with a passenger car that had one of those wrap around signs. We ruled it commercial. The owner was going to fight the issue but realized the HOA would stick to its guns. They finally cleaned out their garage and parked it in there.

Do you have a garage to park your van in?

Richard, Now that you point it out, I'm a bit confused as well.
This should teach me (although teaching implies learning) not to try and answer questions when I'm tired.

I apologize to you and to anyone I may have caused some confusion about the post.

Ok – Thanks for all of the responses! I appreciate everyone’s input. Sorry it has taken so long but I’m going to try to elaborate and answer any questions anyone may have asked to give you guys some more information.

As far as the van goes – unfortunately I am not able to get a van without lettering on it, and the van just will not fit in the garage without serious garage modifications.

I had thought about the blank magnetic signs, especially since the van itself is white. Would they still have a right to make me remove the van if it is just a plain white van? It does have a ladder rack if that makes a difference.

Within the Covenant or the bylaws, there is no specific rule that relates to commercial vehicles (that I have seen, and trust me I have read over them multiple times). This was reinforced when I was told that they “can change the bylaws if necessary to explicitly state no commercial vehicles, if I chose to fight it”.

Here is on section of the Declaration of Covenants where I think they may be referring:
8.2.1. no (a) house trailer, trailer, tractor trailer or other truck (other than a van or “pick-up” truck), boat, boat trailer, camper, recreational bus or any similar item, or (b) (unless current and valid license plates are affixed thereto) automobile, shall be temporarily or permanently parked or stored in the open on any Lot, or on any street or parking area within, or other portion of, the Commons.

8.2.3. no profession or home industry shall be conducted on any Lot.

10.3.1. Except as is otherwise provided in this Declaration, this declaration and the Community Plat may be amended or terminated by and only by an instrument or plat (a) executed by Owners of at least two-thirds (2/3) of the Lots (one of which must, during the development period be the developer) and (b) recorded among land records

10.13. The Association may adopt reasonable rules and regulations regarding the administration, interpretation and enforcement of this Declaration. In adopting such Rules and Regulations, making any finding, determination, ruling or oder, or carrying out any directive contained herein relating to the issuance of permits, authorizations, approvals, or Rules and Regulations, the Association shall take into consideration the best interests of the Owners and of the Community to the end that the Community shall be preserved and maintained as a first class residential community.

Can anyone else see something I can't? Thanks again!

Zach

That's how things are here in my HOA. The CCRs incorporate the by-laws "by reference" and the key section called "FEES AND ASSESSMENTS" appears therein. It calls out all of the common elements that are to be maintained by the association.

In 2011 my HOA amended all governing documents to say that future amendments may be approved with only a majority board vote and a 50% +1 vote of members in attendance at a meeting where quorum has been achieved. There was some reason for this that involved anticipated further amendments that then never transpired. All of our documents, including the CCRs, can be amended by 16 "aye" votes at a meeting with 30 owners present (quorum is 30% of the 100 owners in the community).

Gilea

In my former association any business name lettering on a vehicle made it a commercial vehicle.

I agree that if we accept the premise that the bylaws do not address commercial vehicles, why in the world would he need to change anything !?! very confused as to why anyone would think he needs to.

The paperwork he signed at closing were the bylaws he decided he could live with. No judge worth his salt would rule against this guy.

This, as I found out, is a huge misconception.

In basic terms, a grandfather clause, allows the current state of something to remain unchanged, regardless of the policy change. However, that clause must be specified. If it is not specified, grandfathering does not exist.

One example is the Americans with Disabilities Act. Keep in mind that the law only applied to public buildings and employers who hired x number of employees. When the law went into effect, everyone who was affected by the law had to comply.

In HOAs, grandfathering will often be written into an amendment for the purpose of gathering support for the amendment. Some examples are limitations in rentals not affecting current properties, or current properties that are rented, until that property is sold.

In HOAs, grandfathering will sometimes be written into an policy or amendment to eliminate legal challenges. Examples, a pet policy that limits the number of pets not applying to individuals with more then that number at the time the policy took effect.

Once I discovered that grandfathering was not automatic, and I did a lot research on that because I felt my issue was grandfathered, I actually had our bylaws amended to provide a grandfather clause.

With all of that said, some States will enact statutes that provide a form of grandfathering. An example of this is VA § 55-509.6 and VA § 55-509.7 which binds the Association to any statement made within a disclosure package. Basically that section of the statute says that if the Disclosure package failed to point out an existing violation then the Association can't try to enforce said violation on the new owner.

Kerry,

Yes they can. In fact, Zach's citation of the CC&Rs specify that the Board has the authority to interpret the CC&Rs.

Therefore, the Board may simply chose to interpret that phrase in the following example:
8.2.1. no (a) house trailer, trailer, tractor trailer or other truck (other than a van or “pick-up” truck). . .

The Board hereby defines that within section 8.2.1 of the CC&Rs, that the reference to van or pick-up shall mean personal vehicles only and not commercial vehicles. The Board further defines commercial vehicles as vehicles that meet the State definition of a commercial vehicle, any vehicle that displays signage advertising commercial business, has ladder racks or vehicles that are primarily used for a business.

Such a policy appears to be authorized by the CC&Rs cited by Zach. I would further venture that said policy could be a simple policy resolution vs. an amendment to the CC&Rs. Said policy would stand until a future Board reinterpreted that section of the CC&Rs or the current interpretation was challenged through the courts and ruling provided.

Zach,

I want to point out something very important.

Although there is disagreement from the members of this forum on the interpretation of the documents you cited, you are the one who must live with any consequences of the decisions you make regarding this issue.

There are intended and unintended consequences to every decision.

Challenging a Board decision can be expensive and stressful. This expense and stress will likely not only affect you but your family.

Challenging a Board decision, depending on the publicity of the challenge, may divide the development.

The issue was brought to the Board by someone who can see the vehicle parked in your drive. Most likely some neighbor. Depending on what terms you want with your neighbors, any decision may affect those terms.

That said, I also believe in fighting some issues on principal alone. I also believe fighting some issues based on right and wrong.

However, as I pointed out, you and your family are the ones who must deal with any consequences (intended and unintended). The best we can do is point out some of these consequences, possible interpretations and provide links to various resources in the attempt to aid you in making an informed decision.

Sometimes you need to pick your battles.

I'm sure Zach appreciates the time you've put into his problem, Tim, and I sure agree that he & his family with have to live with the results of his actions. Others, Zach, have suggested the white magnetic covers and, if possible removing the ladder holders.

Unfortunately, Zach, you can't use the reason that the van is your livelihood with HOA boards.

But I see hope in your CC&Rs, where Tim doesn't. At the moment, all vans and all pick-ups are permitted per your HOA's strongest document. For the Board to change the meaning by forbidding lettered, laddered, etc., vans & pick-up trucks goes too far, in my opinion.

It would not be an "interpretation," but an alteration, modification or whatever word one wants to use to say: change.

It seems to me a vote of the Owners would be needed to add that restriction.

I really think it might be worth your while to pay an attorney maybe $250 to give you a written opinion about what the Board may or may not do on its own in this case.

Tim & I can mess with words all we want, but ultimately, I believe this is a legal question.

But, Zach's CC&Rs contain no "commercial" ban, or maybe I'm misunderstanding you, NpS?

Here's an excerpt 8.2.1:

"no (a) house trailer, trailer, tractor trailer or other truck (other than a van or “pick-up” truck), boat, boat trailer, camper, recreational bus or any similar item...shall be temporarily or permanently parked or stored in the open on any Lot..."

ZacharyZ (Maryland):

And so you are welcomed heartily to the universe of HOA. The P&S agreement you bought under, probably provides for the Entirety of the Agreement being within the printed text, else which you are left to the quality of your pre-closing diligence.

1-Whether your Ford F250 is exempt ?

As others noted above, Declaration 8.2.1 fortunately for you enumerates over-sizing as the objection. It is silent about commercial markings. It exempts both "vans & pick-up trucks" allowing you scope to argue for exemption as not of class like full-size schoolbuses, dumptrucks, etc. Imagine if you openly parked a utility tractor, a paramedic van or a hearse.

2- What does a reasonableness criteria mean ?

Declaration 10.13 limits the scope of subordinate rules & regs to a "reasonableness" evaluative criteria, widening the range of challenges to HOA powers if challenged. If "reasonableness" is left to judges & adjudicators, ever wonder how many of them choose to live in condo or HOA communities ? How well equipped are judges ( no wider than from 1 % of the population here ) to know what is a "reasonable" expectation in a community of average folks ?

3 - "Grand-fathering" is rarely an absolute guarantee. It helps smooth the way to a change of governance documents, rather than for new arrivers in violation where a prohibition has long been in place.

4 - need thick skin & bucks if a condo or HOA attacks. Predictability of outcomes is not certain. The Syracuse N.Y. area truck warrior who went on Fox, has packed it in & moved to hassle free Florida. Was that the right direction ? Aug 20/15 “CNY couple who couldn't park their pickup in driveway has had enough; they move out” http://www.syracuse.com/ news/index.ssf/2015/08/couple_sued_over_parking_pickup_in_cny_driveway_says_the_pressure_forced_us_to_m.html

Specifically WHAT in the above is inapplicable ?

Richard,

Is there anything you have a positive attitude about?

Not really

None of that is stated anywhere on this site. It seems to be an English speaking forum for HOA member, decidedly leaning towards North America.

Once you lean towards North America, the demographics force you to lean towards the USA, but rules and posters from Canada are as often as not, applicable here and the posters are welcome. There is often as much variation between state laws as there is between legal concepts in the US and Canada.

Which is what brought many of the regular posters to this site.
Additionally, such posts are allowed and invited.

From the posting rules:

"Topics from individual homeowners, who are not acting as association volunteers, may be addressed if the person has come here to learn in a positive way. "

The Federal Department of Transportation, however, DOES define ALL motor vehicles via a permanently affixed 'sticker' inside the driver door molding.

e.g. 1989 Plymouth Voyager is classified as 'light truck' (in NY it registers as a 'suburban')

as are most other SUVs

and ALL pick-up trucks and ALL cargo vans

READ THE STICKER AND WEEP

It is the 'loophole' for safety issues and 'average fleet fuel economy' ratings

Only a 'passenger vehicle,' must meet 'roll over' requirements, light trucks and most SUVs do NOT.

? Ford Explorer, anyone ?