convenants vs. design guidelines

Started by JohnW4 • 6 replies • 2188 views

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JohnW4 (Indiana)
Posts: 1

Posted:

My subdivision has a set of convenants that are file at the local court house but there are also a set of design guidelines on file at the court house as a seperate filing. Do homeowners have to follow both or just the convenants?
My realtor said that te convenants have the rules in them and they override any design guidelines. She also said that the guidelines are for the builders. Their are things listed in the guidelines that are not in the convenants. Can the BOD enforce the guidelines?

JM2 (Oregon)
Posts: 439

Posted:

Hi John:

The Design Guidelines are usually a document that guides the Architectural Review Committee in what they do/do not approve. They are lower in the hierarchy of documents than the covenants, but you would still need to follow them. In essence, they are a conceptual "blueprint" of what the community will look like. While the guidelines are for builders, they may also speak to landscape design and other things as well. And yes, the BOD can enforce them.

J. Patrick Moore, CMCA

PaulM (Pennsylvania)
Posts: 1,347

Posted:

JohnW4:
-Are the 'design guidelines' on file those of the builder which show what HE will design and do on common ground for the community? IF it is an official document from the builder it may show who it was drawn up by and if it is signed.

-Do you have an Architectural Committee? Usually this committee will enforce the guidelines/rules the Board takes from the CC&R stating what unit owners CAN DO; i.e. adding structures, plantings, fences, play equipment, etc. The ARC committee serves at the pleasure of the Board to monitor architectural requests and to ensure that requests are in line with what has been decided is allowed.

GloriaM (North Carolina)
Posts: 829

Posted:

John:

The Design Guidelines are usually the interpretation of the CCR's. Since they were filed in the Register of Deeds along with the CCR's, it appears as though the Developer filed both documents and therefore they probably (I state probably) don't clash but coincide with the CCR's.

WilliamS1 (South Carolina)
Posts: 113

Posted:

This is a very key article for us right now. We are a 106 town-home community in SC. Our bylaws require an ARC but do not set up rules. The BOD has set up some rules now, and are just in the midst of communicating with the homeownership. To our board, the rules are ment to be fluid and move and grow as needs and objections arise. At some point, the list will be fairly solid but for the time being.. The homeowner can appeal to the ARC and if a majority of the ARC agrees, they appeal to the BOD and if a majority agree, the rule can be changed. They can appeal directly to the BOD and 2/3 must agree to over ride. The opposite is true to establish a rule. Its fairly easy and intuative.

The question - Does this sound normal?
Do the rules do need to be filed like the CCR's?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Whatever works for your community is what is okay. The community is responsible for creating and maintaining rules it wants to live by. This is a perfect example of that.
The ACC or ARC rules don't need to be filed like the CC&R's. They are similar to the by-laws. Some states require the by-laws to be filed as well, but not required. Our ACC did have a set of rules written up in some kind of "official" document. However, no one even had a copy for years nor did we have anyone on the ACC. The responsibilities fell onto the board/President. We then ruled more or less the same way your doing if it isn't restricted already in the CC&R's.

I had a lawyer tell me that whatever rules the HOA want to create or live by, it's their perogative. Are they legal? They can be. Simply even putting rules in a meeting notes may suffice in some situations. As long as it's known to all the members and distributed openly. This doesn't mean that the rules won't or can't be challenged or change. It's just the ability to live in the "culture" your neighborhood wants to create and live in.

Former HOA President

BradD2 (Florida)
Posts: 418

Posted:

The interesting thing about ARC is that they are often provided for in the Covenants to promote architectural harmony at their discretion. As that is very vague guidelines are often drawn up for that things are consistent and fair for all and spell out exactly what is and is not allowed. Judges has regularly ruled that the ARC is ligitament and found against homeowners that have ignored or violated the ARC guidelines. The only guidelines / covenants that can be ignored are those that are allowed under state and federal law.

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