Establishing Rules and Regulations for the first time

Started by JohnC63 • 20 replies • 1264 views

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JohnC63 (Pennsylvania)
Posts: 2

Posted:

I live in a planned community in PA. I'm an original owner. Our HOA was transferred to the homeowners in 2001. When we all bought our houses we signed and received the By-Laws and CCR's. No rules and regulations were developed. In 2009 the board at the time created a Revised Rules and Regulations document which was posted on the website. This document provides an amplification of Covenant restrictions and new restrictions. Now in 2017 we have a new property management company which is enforcing the 2009 document.

My community is incredibly apathetic. There are no real issues and our annual meeting of 230 homes garners about 10 people. The CCR's are very small maybe ten generic rules. The CCR's makes one mention which says the board has the right to "adopt and or amend the rules and regulations". The inference is that there was a rules and regulation document to begin. From my reading on this message board it appears atypical that we didn't have rules and regulations. My question is: Did the board have the authority to create a governing document which hadn't existed before. I ask because I find it odd that they described the document not as establishing the rules but revising them. Not sure how you revise something that doesn't exist.

By the way I obviously have a violation. Actually my entire street does. My street is in the back of community 33 homes called the reserve. Our homes are all on 3/4's of an acre with side garages. Our homes are set back about 75' from the road. The rest of community is on .2 acres with front facing garages set about 20' from the road. The "new" restrictions says that trash containers can not be kept in front of the house or visible from the street. Our entire street with side facing garages keep our trash containers on the side by our garages. I called the board President about it and his comment was that we aren't special in the reserve and have to abide by the same rules.

At the end of the day I'm guessing I'll need to build a fence box on the side my house to hide the trash container. What I would rather say is the the Revised Rules and Regulations

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Rules and Regulations are what the majority of owner's makes them. If you all want to paint the roads "Red", then you can do that. Just vote it into the rules by the majority requirement, file the document, and go raise the money to pay for the red paint on the road.

Why restrict yourselves if that restriction isn't what anyone wants? HOA's are NOT to keep home VALUES. They are to keep home ATTRACTIVENESS. So don't put yourselves into a box because it's believed that certain "comformities" make your homes more "Valuable". Put yourselves in a box you want to live in and make others want to too...

Former HOA President

JohnC46 (South Carolina)
Posts: 14,265

Posted:

A BOD has the right to make Rules & Regulations. That said:

1. The R&R's cannot override any Covenant nor Bylaw. If Covenants say no farm animals are allowed, a R&R cannot override that.

2. The BOD can change a R&R.

3. If you do not like the R&R's then vote for new BOD members that will change them.

I for one think visible trash barrels are unsightly. They can easily be hidden.

NigelB (Texas)
Posts: 254

Posted:

Quote:

Posted By JohnC63 on 03/27/2017 5:05 AM
I live in a planned community in PA. I'm an original owner. Our HOA was transferred to the homeowners in 2001. When we all bought our houses we signed and received the By-Laws and CCR's. No rules and regulations were developed. In 2009 the board at the time created a Revised Rules and Regulations document which was posted on the website. This document provides an amplification of Covenant restrictions and new restrictions. Now in 2017 we have a new property management company which is enforcing the 2009 document.

My community is incredibly apathetic. There are no real issues and our annual meeting of 230 homes garners about 10 people. The CCR's are very small maybe ten generic rules. The CCR's makes one mention which says the board has the right to "adopt and or amend the rules and regulations". The inference is that there was a rules and regulation document to begin. From my reading on this message board it appears atypical that we didn't have rules and regulations. My question is: Did the board have the authority to create a governing document which hadn't existed before. I ask because I find it odd that they described the document not as establishing the rules but revising them. Not sure how you revise something that doesn't exist.

By the way I obviously have a violation. Actually my entire street does. My street is in the back of community 33 homes called the reserve. Our homes are all on 3/4's of an acre with side garages. Our homes are set back about 75' from the road. The rest of community is on .2 acres with front facing garages set about 20' from the road. The "new" restrictions says that trash containers can not be kept in front of the house or visible from the street. Our entire street with side facing garages keep our trash containers on the side by our garages. I called the board President about it and his comment was that we aren't special in the reserve and have to abide by the same rules.

At the end of the day I'm guessing I'll need to build a fence box on the side my house to hide the trash container. What I would rather say is the the Revised Rules and Regulations

There are a couple of possible issues.

While the CCR's give the board the right to adopt and/or amend rules and regulations, and those Revised Rules were adopted in 2009 eight (8) years ago, your post seems to indicate that those rules were never enforced until recently (2017). While under developer control, the declarant generally has a right to amend any governing document without a vote from the community, once control passes to the community the CCR's would specify how amendments can be made. Your State laws might very well provide insight as to how an association may impose Architectural Controls also, in my State (Texas), section 204 of the property code gives an association the right to implement written architectural control guidelines for its own use or record the guidelines in the real property records of the applicable county; and (B) modify the guidelines as the needs of the subdivision change. But those guidelines cannot alter or amend the CCR's, that can only be done by a 3/5ths approval of the homeowners.

A case could be argued that the failure of the the board to enforce the 2009 Revised Rules for eight years resulted in a willful abandonment of those rules and that they are now unenforceable. Of course that would probably require a legal ruling.

Perhaps a more reasonable thing to do would be for the board to appoint a committee to take a look at the 2009 guidelines with a view to rewriting them taking into account existing conditions.

Enforcing ACC Rules can be very contentious, and becomes personal when a homeowner receives a violation letter.

JohnC63 (Pennsylvania)
Posts: 2

Posted:

I was more interested in the 8 years from 2001 to 2009 where we had no rules and regulations at all only the CCR. Regardless it really isn't a big deal. No one wants to be on the board and the guys doing it have been there awhile and are tired of it all. After some consideration I would rather fence in my trash can than make their lives more difficult and risk having them walk. Thanks for the replies.

LarryB13 (Arizona)
Posts: 4,099

Posted:

John,

I have read dozens of appellate court opinions from around the country on similar subjects, although I recall none specific to PA. Most courts would not find in favor of your association in this matter for two reasons.

First, the issue here is what you may or may not do on your own property. The recorded CC&R's are usually the only document that limits what you may do and your deed likely states that your property is subject to the CC&R's recorded on a particular page and book. "Rules and Regulations" normally applies only to the common areas owned by your association. The courts have uniformly held that if a restriction on what may be done on private property is not stated in the CC&R's then it is not enforceable.

Second, a majority of the courts have held that changes to property restrictions cannot create new or unforeseen burdens on existing owners.

My first guess is that to solve your problem with the association you will need to have an attorney do some research and then threaten the board with legal action if they persist in trying to regulate your property. My other guess is that no one on your BOD has bothered to consult an attorney and is unlikely to do so until they are served with the summons and complaint.

TimB4 (Tennessee)
Posts: 21,059

Posted:

John,

I agree that any rules/regs need to be for everyone.

Isn't it possible to place the cans within the garage?
How about in the back of the house?

JanetB2 (Colorado)
Posts: 4,219

Posted:

I live in an HOA and have almost 6 acres. We do not allow trash cans to be seen until the evening before trash pick up. We prefer that they are kept in garage or other enclosed space during rest of week so that we do not attract predators to the area such as bears or mountain lions. Most areas have animals who will engage in dumpster diving without these type rules.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By MelissaP1 on 03/27/2017 5:11 AM
Rules and Regulations are what the majority of owner's makes them. If you all want to paint the roads "Red", then you can do that. Just vote it into the rules by the majority requirement, file the document, and go raise the money to pay for the red paint on the road.

Why restrict yourselves if that restriction isn't what anyone wants? HOA's are NOT to keep home VALUES. They are to keep home ATTRACTIVENESS. So don't put yourselves into a box because it's believed that certain "comformities" make your homes more "Valuable". Put yourselves in a box you want to live in and make others want to too...

Melissa ... Rules and Regulations are not voted by the membership. They are imposed by the Board ... unless they are reasonable they possibly will not stand up in a court of law. The CCR's are the document which cannot be changed except by majority of members.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

What??? Janet? The membership can vote to change the CC&R's. That is why you have that 1 vote for each member. So if a majority does not like or they want a rule, then they can vote for it. The board job is to file those changes and then enforce those rules.

It's all in your documents. A HOA membership can change the rules of which they live under as long as they comply with local, state, county, and federal laws.

Former HOA President

SueW6 (Michigan)
Posts: 814

Posted:

The bylaws give the BOARD the right to formulate rules and regs.

If the Membership wants to change or amend or create a "rule" it must bring on influence or pressure on the board. This an be done at special meetings, petition or demanding the board create a committee.

The "process" must be followed according to the bylaws.

NigelB (Texas)
Posts: 254

Posted:

Quote:

Posted By MelissaP1 on 03/28/2017 5:15 AM
What??? Janet? The membership can vote to change the CC&R's. That is why you have that 1 vote for each member. So if a majority does not like or they want a rule, then they can vote for it. The board job is to file those changes and then enforce those rules.

It's all in your documents. A HOA membership can change the rules of which they live under as long as they comply with local, state, county, and federal laws.

I don't believe that there is a universal rule concerning how CC&R's can be changed, that is totally dependent on what the individual CC&R's state, and what the statutes of the State of residence say.

Our CC&R's (in Texas) state that while under developer control they may be changed by the declarant at any time. Once developer control passes, it takes 3/5ths of the owners of record to agree in writing to change them (that's 3/5ths of the individuals listed on the deed to the property and not the 1 vote per property for other electoral matters).

The Rules or Architectural Control Rules and Regulations are an entirely different matter. They are Rules and Regulations promulgated by the board of directors under the authority of the CC&R's. They cannot be changed by the membership and can only be changed by the board of directors.

That of course does not mean that the membership cannot have a say in ACC Rules and Regs, they can and they should - but the final decision rests with the board. Obviously, the biggest problem in enacting ACC Rules and Regulations is how much say the membership should be given by the board, generally the board should appoint an ACC committee to do this on behalf of the membership by soliciting volunteers to serve on the committee.

As I said at the beginning, this is not universal and the instance I speak about is from personal experience with my HOA in Texas - other HOA's in Texas and other States may be completely different.

JeffT2 (Iowa)
Posts: 880

Posted:

Some associations have Rules and Regulations that are voted on by owners. It is possible to have both board and owner rules.

KerryL1 (California)
Posts: 14,550

Posted:

Our CC&R give the Board the right to formulate Rules & Regs so long as they don't conflict wit higher ranking docs.. In Ca whats' next is the propertied rule(s) are sent to Owners for a 30=day content period.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By JeffT2 on 03/28/2017 1:18 PM
Some associations have Rules and Regulations that are voted on by owners. It is possible to have both board and owner rules.

My HOA is like this. The bylaws say the board may make reasonable rules and regulations and the homeowners, at the next annual meeting, shall confirm or amend them. It's an odd arrangement that I haven't seen too many other places. The developer's parent company was based in Dubuque and I wonder if it's a common thing in Iowa. I'm fairly certain the parent company's attorney's were the original drafters of our bylaws.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

HOA's can have CCR's which are agreed to when purchase. Then they can also have Rules & Regulations which are decided only by the Board. The OP is questioning the Rules imposed by the Board not the CCR's.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By GenoS on 03/29/2017 2:08 AM

Posted By JeffT2 on 03/28/2017 1:18 PM
Some associations have Rules and Regulations that are voted on by owners. It is possible to have both board and owner rules.

Actually the fact the Owners have to confirm would be good ... because then has higher chance of standing up in a Court if challenged. HOA's who did not have owner confirm many times will loose a court battle on rules which are not in the CCR's. The courts determine that because imposed by a handful (a.k.a. Board) and not the Members, if found in any way unreasonable or supersede CCR's fail. That is why I usually state if want any item to stand up against any challenge everything should be in CCR's.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

So how do you think the board gets in that position or removed from it? The SAME power of vote it takes to approve or recind rules/regulations. The board represents the HOA as a "WHOLE" and is voted in by the membership as a whole. So if your board is not making rules/regs the majority of members want or don't want, then you have the power to remove them. The board is to represent what the majority wants.

Don't know why everyone is treating the HOA like they don't have a say and the board makes the rules... The truth is that every members with their one vote has the power to vote in a board that represents them AND vote for changes in rules in their CC&R's, by-laws, and Articles of Incorporation.

I say if your board is making the rules FOR you, then your in the wrong HOA...

Former HOA President

KerryL1 (California)
Posts: 14,550

Posted:

I'll try to write without typos this time, Melissa. Our CC&Rs give the Board the right to make R & Rs. In CA, proposed rules must be sent to to Owners for a 30 day comment period before the Board can approve them. this is NOT an Owners' vote, just their opinion.

We just received the comment from one owners on our most recent proposed rule, it agreed with the Board and no Owners objected. We approved the rule last night and it will go into effect in 30 days. Owners, of course, can rebel launch and throw out the board. In that sense they have ultimate control.

But I believe that in most HOAs the Board makes the R&Rs. Maybe not in Alabama??

LarryB13 (Arizona)
Posts: 4,099

Posted:

Kerry,

Unlike your situation, the OP is in a real HOA made up of individual single-family homes on fee-simple parcels. The issue here is whether the association has the authority to impose restrictions as to what the owners may do on their own property when the restrictions are not stated in the CC&R's.

My reading of case law is that the association has no authority to unilaterally impose regulations on the use of property not owned by the association. See Wilson v. Playa Serrano, at http://caselaw.findlaw.com/az-court-of-appeals/1485688.html (Only an amendment to the declaration can convert an unrestricted condo complex to 55+ community.) Also see Dreamland Villa Community Club, Inc. v. Raimey, at http://caselaw.findlaw.com/az-court-of-appeals/1519074.html (Declarations may not be amended to add new or unforeseen burdens, citing opinions from numerous jurisdictions.)

If anyone else has case law that disputes what I have found then this is the time and place to post them.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Larry while your case laws are good the issue would be the OP is in PA and you are quoting cases from AZ. Your quoted cases might not hold up in PA courts of law.

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