Changing Rules & Regs.

Started by TomM15 • 9 replies • 978 views

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TomM15 (South Carolina)
Posts: 8

Posted:

Our HOA has been changing the rules and regs for 11 years. None of the changes have been filed with the state by when a change occurs Homeowners are sent letter explaining the changes. Our new Management company says all the changes for the past 11 years are illegal. We are told we can't make changes to the Covenants or By-Laws even if they're less restrictive. We have asked why then are there two sections of our Covenants 7 By-Laws that say the Board can make changes.

9.01 By-laws: The board may from time to time adopt, amend, repeal, and enforce reasonable rules and regulations governing the use and operation of the property, to the extent that such rules and regulations are not inconsistent with the rights and duties set forth in the Articles of Incorporation of these by-laws.

Page 6 Covenants – Rights of HOA
# 7 – “The board can make, alter, change, or add any additional rules and regulations to as they see fit”.

The association is located in South Carolina. Can anyone help or have useful suggestions.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Tom

One of the main differences between Covenants and Bylaws versus Rules and Regulations (R&R) is that Covenant/Bylaws typically take a majority of owners to approve any changes. The % required can vary.

R&R's can typically be changed by a BOD vote only.

R&R changes cannot override Covenants nor Bylaws. This gets tricky as many associations will try to do so. As an example: The R&R's can control amenity hours but cannot get rid of the amenity. The typical end run some BOD's try is to limit/control rentals via R&R's. Another area where R&R's can run afoul of the Covenants/Bylaws is parking issues. Another example is our Covenants say our BOD must consist of 3 to 7 members. The BOD via an R&R can dictate how many Members there are as long as there are no less then 3 and no more then 7.

In SC, Covenants and Bylaws must be recorded with the deed. R&R's do not need to be recorded.

Is there a specific R&R you are referring to?

BenA2 (Texas)
Posts: 1,273

Posted:

I'm not familiar with South Carolina specifically but generally governing documents and amendments to them have to be filed with the city or county and are not valid if they are not. If your management is telling you that the board cannot change the covenants or bylaws it may be because it would violate state law which would invalidate that part of the documents.

KerryL1 (California)
Posts: 14,550

Posted:

Let's say your CC&Rs say backyard fences must be no taller than 8 feet. The Board cannot amend that to 10" without an owner vote even though less restrictive. The Board CAN specify the materials the fence must be made out of IF not already in your CC&Rs.

With John, do you have examples of rules & regs that you're told aren't legal?

BenA2 (Texas)
Posts: 1,273

Posted:

Quote:

Posted By KerryL1 on 02/24/2018 5:20 PM
Let's say your CC&Rs say backyard fences must be no taller than 8 feet. The Board cannot amend that to 10" without an owner vote even though less restrictive. The Board CAN specify the materials the fence must be made out of IF not already in your CC&Rs.

The board could only regulate the materials if the CC&Rs give them that authority.

TomM15 (South Carolina)
Posts: 8

Posted:

One simple rule is our By-laws say our garbage cans can only be placed out at the curb the morning of pick-up. Our garbage pick-up is 4:30 a.m. so the board changed the rule to allow Homeowners to place their cans out at 6:00 p.m. the evening before.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By TomM15 on 02/24/2018 6:32 PM
One simple rule is our By-laws say our garbage cans can only be placed out at the curb the morning of pick-up. Our garbage pick-up is 4:30 a.m. so the board changed the rule to allow Homeowners to place their cans out at 6:00 p.m. the evening before.

Are you sure the rule is in the Bylaws?

DouglasK1 (Florida)
Posts: 2,046

Posted:

Quote:

As John mentioned upthread, board Rules and Regs can't conflict with bylaws or CCRs, they can only fill in the gaps. In this case it would seem that the rule is not really within the board's authority. Better wording might be to pass a rule that the board will not pursue any action against trash cans being put out after 6 the day before.

Are you sure that limitation is in the bylaws and not the CCRs? Either way, the ideal solution would be to change those docs, but that can be difficult as they typically require a member vote. Bylaws are usually easier, CCRs more challenging.

Escaped former treasurer and director of a self managed association.

DouglasK1 (Florida)
Posts: 2,046

Posted:

Quote:

Posted By TomM15 on 02/24/2018 4:24 PM
Our HOA has been changing the rules and regs for 11 years. None of the changes have been filed with the state by when a change occurs Homeowners are sent letter explaining the changes. Our new Management company says all the changes for the past 11 years are illegal. We are told we can't make changes to the Covenants or By-Laws even if they're less restrictive. We have asked why then are there two sections of our Covenants 7 By-Laws that say the Board can make changes.

9.01 By-laws: The board may from time to time adopt, amend, repeal, and enforce reasonable rules and regulations governing the use and operation of the property, to the extent that such rules and regulations are not inconsistent with the rights and duties set forth in the Articles of Incorporation of these by-laws.

Page 6 Covenants – Rights of HOA
# 7 – “The board can make, alter, change, or add any additional rules and regulations to as they see fit”.

The association is located in South Carolina. Can anyone help or have useful suggestions.

The first bolded section echos what John said, rules can't conflict with bylaws, they can only fill in the gaps where the bylaws don't specify.

The second bolded section says that the board can make or add rules, and alter or change those rules that it has created. It does not say that the board can alter or change anything in the CCRs.

Realistically it only becomes a problem if somebody takes issue with a rule the board has created. If they were to go to court over an improper rule, they could easily prevail.

Escaped former treasurer and director of a self managed association.

KerryL1 (California)
Posts: 14,550

Posted:

I'm surprised too that the trash can rule is in the Bylaws. Or, as Douglas' bolded section shows, maybe in the Articles??? That seems odder yet.

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