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South Carolina Governing Docs - Hierarchal order

Started by LV • 9 replies • 969 views

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LV (South Carolina)
Posts: 38
Posted:
Just wanted to get final confirmation on the hierarchy of governing docs in SC. These are single family homes.
SC Non-profit Act
Covenants, Conditions, and Restrictions
Articles of Incorporation
By-Laws
Rules and Regulations

No document must conflict with the aforementioned.

Please advise and thank you!
TimB4 (Tennessee)
Posts: 21,059
Posted:
Same order of precedence for all States:

Federal Law
Federal Regulations
State Law
State Regulations
County Codes
City Ordinances
Deed Restrictions (CC&Rs)
Articles of Incorporation (may be called something else depending on State)
Bylaws
Resolutions (Associations rules/regs)
JohnC46 (South Carolina)
Posts: 14,265
Posted:
When it comes to associations they can have tougher requirements and the fact is you agreed to abide by those tougher regulations when you became a member.

The classic one is the town allows 8ft high chain link fences but the associations limits fences to 4ft high, white, wooden picket fences. The association wins.

Another classic is the town allows on street parking. The association says no overnight street parking. The association wins.

When I say wins, it means when you joined the association you agreed to abide by the association docs.
LV (South Carolina)
Posts: 38
Posted:
I agree with all these points. I just wanted the hierarchy of docs to make sure they are correct. Is the SC non-profit ACT higher than the CCR's?
LV (South Carolina)
Posts: 38
Posted:
Thank you...the SC non-profit act is the state law..i just wanted to confirm that piece.
KerryL1 (California)
Posts: 14,550
Posted:
Good, LV; just wanted to add that at least in my HOA rules and Regs are a governing document and no boar result ions may conflict with them. In addition, in CA, rules amendments proposed by the Board need a 30-day comment period for Owners before the board can vote to approve them.
TimB4 (Tennessee)
Posts: 21,059
Posted:
LV,

Keep in mind that sometimes sections of the law defers control to the CC&Rs.
BenA2 (Texas)
Posts: 1,273
Posted:
Quote:
Posted By JohnC46 on 02/01/2018 6:58 AM
When it comes to associations they can have tougher requirements and the fact is you agreed to abide by those tougher regulations when you became a member.

The classic one is the town allows 8ft high chain link fences but the associations limits fences to 4ft high, white, wooden picket fences. The association wins.

Another classic is the town allows on street parking. The association says no overnight street parking. The association wins.

When I say wins, it means when you joined the association you agreed to abide by the association docs.

It's not that simple. In your fence example the the HOA does not conflict with the town ordinance. A 4' fence is less than 8' so a 4' fence is in compliance with both the town and HOA. If the town ordinance said everyone has a right to build an 8' fence, the HOA rule would be invalid.

For example, we have a covenant that prohibits signs but the state law says that anyone can place a political sign on their property up to a certain size, regardless of any covenant. So, the state law prevails and our covenant is not valid when it comes to political signs up to the allowed size.

With your example of street parking, if it is private the town probably has no control over it and if it is a public street the HOA has no control. It is possible that precedents in some states may allow HOAs to control public street parking but I think that would be unusual.

TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By BenA2 on 02/01/2018 1:51 PM

With your example of street parking, if it is private the town probably has no control over it and if it is a public street the HOA has no control. It is possible that precedents in some states may allow HOAs to control public street parking but I think that would be unusual.

actually it is very typical.

This is done via CC&Rs and the restriction on public streets can be imposed on owners and their family. The Association can also hold the owners responsible for the actions of their tenants. What the Association can't do is impose parking restrictions on nonmembers for public streets.

Of course, this varies by State.

BTW, in your political sign example, those type of laws were enacted because the courts were upholding the covenants that said no signs.
BenA2 (Texas)
Posts: 1,273
Posted:
Quote:
Posted By TimB4 on 02/01/2018 2:01 PM
Posted By BenA2 on 02/01/2018 1:51 PM

With your example of street parking, if it is private the town probably has no control over it and if it is a public street the HOA has no control. It is possible that precedents in some states may allow HOAs to control public street parking but I think that would be unusual.


actually it is very typical.

This is done via CC&Rs and the restriction on public streets can be imposed on owners and their family. The Association can also hold the owners responsible for the actions of their tenants. What the Association can't do is impose parking restrictions on nonmembers for public streets.

Of course, this varies by State.

BTW, in your political sign example, those type of laws were enacted because the courts were upholding the covenants that said no signs.

I have no doubt that many covenants restrict parking on public streets and I'm not be surprised that some states have upheld them. My personal opinion is that it is unreasonable for a covenant that is attached to private property could control what you do on public property and it would surprise me if most courts upheld them.

As for the political signs, I'm sure some courts were upholding the covenants, as they should. I was only making the point that just because we agree to covenants does not make them valid when they conflict with state law.

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