Outdated CCR & ByLaws

Started by RobynH1 • 16 replies • 1796 views

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RobynH1 (South Carolina)
Posts: 39

Posted:

I recently was advised from 3 different sources that aged CCRs and By Laws are almost impossible to enforce in todays courts in favor of the Association. Most wording is to
out dated and can be declared ambiguous.

Ours CCRs are the original written in 1985 by developer with one filed amendment concerning
relocation and reconfigure for decks being built on common ground. The association has
different structures due to 4 different developers. We are a community of 4 (one story)
4 plexes and patio homes consisting of doubles and singles.

I was under the impression these are legal documents to be honored in a court of law
until either rewrite or until state statutes deem them obsolete in some form ie the
TV dishes.

We as a community agree the CCR an By Laws require attention and a rewrite but I didn't
think the current rules and regs were basically not enforceable legally.

One comment did come from legal counsel in general conversation?? Not a association counsel.

This is being pursued due to owner building a larger deck taking more common ground and not complying with architectural design of all other existing decks. CCR states under Architectural Control: Deck must be a specific size and style of other buildings. Which was not followed on both counts. A letter was send by the Board to adhere to rules which has not been complied with as of the date of this email. However, this owner is running for the board. If he is in violation of the order can he run or the board?

As always thank you for you comments and direction

R

MelissaP1 (Alabama)
Posts: 13,836

Posted:

My question is what are your rules being subject to the court system? Those rules are for your HOA to follow and enforce. You all can modify and change those documents by majority vote. Only legal part is when it comes to filing to make them Public domain documents at the Records department.

If your basing your decisions on what will hold up in court, then your basing everything on potential lawsuits. Which is a waste of time and effort. Being scared of being sued influencing every decision your HOA makes in regards to it's rules just lessens it. A HOA is it's OWN corporation and can manage itself as long as their rules do not supercede local, state, and federal laws. Your HOA can make rules such as "Only Green paint on all doors" if it wants. Plus can have the power to enforce it by levying fines (with a proper fining schedule) or by fixing it themselves and sending the owner the bill amongst the most popular enforcements.

It is about time to update your documents and follow the requirements to do so. It's all spelled out in your documents on how to do it. Just would consult a lawyer on drafting changes, making sure they are legal, and filing them when votes are collected. Each HOA is different on what it takes to change documents and for each one. CC&R's are the hardest. They can take up to 100% of the owners. The others like Article of Incorporation, by-laws, or Architectural documents may take 75% or less. Our changes required a special meeting to gather votes.

HOA rules are written so the owners/members can manage themselves. Suing your HOA is suing yourself and your neighbors... So taking it to the court system because of the HOA rules issue costs everyone. It doesn't if you all understand the power within you all have to manage yourselves.

Former HOA President

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Robyn

Out of date docs, unless presently illegal, are still the docs. You say the owner is in violation and has been notified.

As far as him running for the BOD, your Bylaws may have conditions for eligibility like current with dues, no outstanding fines, no pending legal action with the HOA, etc. I doubt they say one cannot run because they have "been notified" of a violation.

Think about it this way. What a great way for a BOD to eliminate/control candidates they do not like. Just send violation notices..........LOL

Summary: He has been accused of a violation but I do not see an "accusation" as preventing him from running for the BOD. One is innocent until proven guilty.

Dear Robyn

You have been accused of letting your dog roam free which is in violation of our Docs.

As such, until this issue is settled you will not be allowed to run for the BOD.

Sincerely,

Your BOD

KerryL1 (California)
Posts: 14,550

Posted:

With JohnC, Robyn, your docs still apply. Unless yoou have a written opinion to the contrary form an attorney, preferably an HOA attorney. Are you on the board?

Did this owner get authorization to build this deck from your architectural committee? Or don't you have one?

Does you HOA have a mechanism to call owners to hearings if they violate your documents?

If your bylaws state that directors and candidates must be in good standing, that means he done's qualify for the board IF he's been called to hearing and th Board made a decision to fine him, give him xxx days to bring the deck into compliance, or whatever your docs permit.

RobynH1 (South Carolina)
Posts: 39

Posted:

We do not have an architectural committee.

Owner had a meeting w/Board. Board stated specifics on the construction specs. of the deck. Owner elected to build his deck according to his original plans. Board sent
letter to Owner stating he must redo deck according to their specs discussed in the
meeting he attended before he built the deck. To date he has not comply with the
direction in said letter from the board.

Here is what my Membership Voting Rights states.

Suspension of Membership and Voting Rights

If during any period a member fails to pay any annual assessment duly levied by the
Assoc. for a period of more than thirty(30) days after it is due and payable, the voting rights and right to the use of recreational facilities if any,
such membership rights may also be suspended for violation of any of the rules and regulations, promulgated by the Board of Directors or Association governing the use of the Common Area for the greater of (1) a period of time not exceeding thirty (30) days or (2) the period of time during which said rules and regulations continue to be violated.

It appears to me if he hasn't complied with the instruction in the letter from the Board
referencing the deck structure corrections necessary he is suspended.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By RobynH1 on 01/17/2016 1:07 PM

It appears to me if he hasn't complied with the instruction in the letter from the Board
referencing the deck structure corrections necessary he is suspended.

How recent is this issue (less then 12 months, more than a year)?

Has the Board started assessing monetary penalties or filed legal action against the individual to resolve the deck issue?

RobynH1 (South Carolina)
Posts: 39

Posted:

Thank you John.

Owner has atty. No papers have been received as of yet. Our annual meeting is in 2 weeks. Guess we will wait and see if this a bluff. He hasn't carried out the Boards
instructions for corrections needed to the deck of yet. No legal action has been taken on our (Board) part.

I didn't see how our docs could just go away due to age. That makes no sense at all.
In fact I've never heard that one all the times I have served on the Board.

RobynH1 (South Carolina)
Posts: 39

Posted:

Issue total is 6 months old. Built in July 2015 and letter 2 months later because
he stated he would fix the deck according to the letter but has not to date done
so. Not sure where monetary penalties stand at present. I know no legal action
has taken place.

RobynH1 (South Carolina)
Posts: 39

Posted:

Thank you for your time Melissa.

New owner stated he would bring legal action. We haven't received any papers yet.

I believe our issues that need reviewed are within the by-laws mostly. This is a small association (64) units. We do not have a club house, pool, or tennis court.

Mostly what I call nuisance problems. This is the first structural issue we have had to go this far.

I will take all of your information under advisement.

Thanks again

Robyn

JonD1
Posts: 2,350

Posted:

Robyn

Are you currently serving on this board?

If so how would you not know if fines have been imposed?

Do you have a fine policy? Has your board ever issued fines?

Sounds to me like your board is allowing this owner to direct the course of this conflict. Who cares what they threaten?

They wrote a letter agreeing to their changing the deck to abide by HOA guidelines and then failed to do so. Case closed.

Having a lawyer means nothing. We would have begun fines long ago instead of waiting to hear back.

GenoS (Florida)
Posts: 4,276

Posted:

When the owner met with the board and the board "stated specifics on the construction specs", were those in writing? Have they been consistent and in-force for a period of time or did the board just discuss the "specs" in general non-specific and ambiguous terms? I think you'd need to point to a specific set of written guidelines in order to have the owner deemed guilty of violating the architectural guidelines. Even without an architectural committee, do the CCRs grant the board the authority to approve or decline proposed decks?

DjB2 (Pennsylvania)
Posts: 49

Posted:

Ours were written in 1981, when our development was built. They have never been updated, although we did add a one-item amendment many years ago when we issued a ruling on satellite dish installations; as that was never covered in our original documents. For satellite dishes we found The FCC Rule, and just instituted that Rule - after an acceptance vote of the majority of all owners on the subject.

We considered having our documents rewritten, or at least reviewed, some years ago by a competent attorney. Then we found the Pennsylvania Uniform Condominium Act (PUCA), which overrides ALL Bylaws and CC&Rs in this state anyway - so we figured, why bother?

Now whenever any issue comes up - and they rarely do in this 32 unit condo development anyway, we just review our own documents and then the PUCA. If both agree on the subject we're all set. If the PUCA disagrees, it overrides our documents anyway and we go with whatever the PUCA says.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By DjB2 on 01/17/2016 4:42 PM
Ours were written in 1981, when our development was built. They have never been updated, although we did add a one-item amendment many years ago when we issued a ruling on satellite dish installations; as that was never covered in our original documents. For satellite dishes we found The FCC Rule, and just instituted that Rule - after an acceptance vote of the majority of all owners on the subject.

We considered having our documents rewritten, or at least reviewed, some years ago by a competent attorney. Then we found the Pennsylvania Uniform Condominium Act (PUCA), which overrides ALL Bylaws and CC&Rs in this state anyway - so we figured, why bother?

Now whenever any issue comes up - and they rarely do in this 32 unit condo development anyway, we just review our own documents and then the PUCA. If both agree on the subject we're all set. If the PUCA disagrees, it overrides our documents anyway and we go with whatever the PUCA says.

FYI. PUCA does not override ALL bylaws and ccrs for condos that predate the statute. See 3102 for specifics. But if it's a loose association and everyone is happy following PUCA, then so be it.

Sikubali jukumu. Read all posts at your own risk.

DjB2 (Pennsylvania)
Posts: 49

Posted:

Everyone is happy!

KerryL1 (California)
Posts: 14,550

Posted:

With at least one other: Did your board give this Owner any instructions about what the penalty will be when i her doesn't comply, or how long before he must comply?

Your citation doesn't seem to say qualifications for Board service. Normally those would be in your bylaws? Are there any?

Again, are you on the board?

Why does this owner who's in violation of your c docs, getting an attorney?

RobynH1 (South Carolina)
Posts: 39

Posted:

Problem solved. Owner has agreed to make changes to deck.

Thank you all for your information.

Robyn

JonD1
Posts: 2,350

Posted:

Good for you, your board and your community. Far better than having this simple matter wind up in court.

Wish everyone's conflict resolved themselves so easily.

Good luck.

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