R&Rs and the D, CC&R

The CCR’s are attached to the property titles and is the absolute legal document because all owners signed and agreed to them. This is also the document which requires the majority of owners to agree regarding any changes. This document will stand up very well in a court of law and the HOA following them and the State Statutes can usually win the battle.

The R&R are rules which generally have only have been agreed to by a handful of BOD members vs the membership. They must be “very reasonable” and because implemented by a handful (a.k.a. BOD) can be more easily challenged in a court of law. It is best for any dispute to be careful not to get into a lawsuit regarding R&R’s as there is a higher probablity of the HOA possibly not winning after spending lots of money.

Roger on the legal side of the CC&Rs.

To Richard’s point ...our CCRs mention RR on common property, but there is no mention of RRs that govern or restrict property owners on their property ....it is just missing.

My question - given there is no mention in the CCRs of the Board being able to create RRs, do the RRs in this neighborhood have standing in the same manner as those that are specifically mentioned in the CCRs?

George

I am a bit confused. You refer to R&R's in the Covenants as such these are what control and will take a majority of owners voting to change. R&R's made by the BOD should not conflict nor override R&R's in the Covenants. Many BOD's try this and in the end, they lose. R&R's made by the BOD can be changed by the BOD.

NO ... Because those mentioned in the CCR’s are attached to everyone’s Property Titles. Other R&R’s can be enforceable if “reasonable”, but a Court will look very hard at the reasonable rule and tend to lean towards an owners free use of their own property outside of the CCR’s.

OK - I'm gonna do some quoting, so bear with me.

Our CCRs say the following:

- under "Owners' Easements of Use and Enjoyment", item "The right of the Association to reasonably limit the use of any Common Areas by published rules and regulations, including the number of guests and prescribing hours of usage."
- this is the only mention of rules and regulations (I assess this to be more like the capitalized "Rules and Regulations" by the usage of the words)

We also have a formal document, "Rules and Regulations," occasionally modified by the Board that says, in opening:

"The Association reserves the right to make and enforce such other reasonable rules and regulations as in
its judgment may be deemed necessary or advisable from time to time to promote the safety, care and
cleanliness of the premises and for the preservation of good order therein. It is understood and agreed
between the Association and the Owner/Occupant that no assent or consent to changes in, or waiver of
any part of this indenture, in spirit or letter, shall be deemed or taken as made, except the same be done
in writing and endorsed hereon by the Association. Association reserves the right to alter, amend or
modify these rules and regulations and also to promulgate new and additional rules and regulations at any
time and in such event such altered, modified, amended or new rules and regulations shall become a part
hereof and shall have the same force and effect and be binding upon the Owner/Occupant to the same
extend as if incorporated herein at the time of execution of this document."

So ... our D, CCR has specific mention of rules and regulations for Common Area - my read is that "...right of the Association ..." means it could be managed by the Board.

But, since there is no other mention in the D, CCRs of the Association (Board) developing, managing, modifying, etc any "Rules and Regulations" to do things like limit the number of pets, limit types of outdoor cooking, window air conditioners, etc, where does the authority to do this come from?

BTW - as I stated, this HOA is run very well, is well funded, looks great, etc - I am just reviewing things we need to address to ensure we are protected:
- MRTA filing
- documents all recorded (Florida has some new statute language on this, although it does appear original documents to a certain date are grandfathered)

The only authority that seems to be there is the right to make rules and regulations for the use of the pool or whatever other common elements should have "prescribed hours of usage" and limitations on the number of guests.

Kerry and Richard - no definition of rules and regulations - lower case rules and responsibilities mentioned only once, and, as I quoted and referenced. Yes, the D, CCRs have significant amount of stick and rudder regarding the ACB and restrictions and provisions. My read is there is sufficient detail to manage construction and modifications of properties. This is not an issue.

Geno - you got to my end state assessment quickly. I will do the research. I’ll discuss it a bit, but until I really understand the implications, it won’t be discussed at the Board level. Hopefully, I’ll find something I’ve missed in my documents review.

Every HOA is different but, in my experience, the rules and regulations (R&Rs) usually only cover common areas, although, as someone mentioned, architectural guidelines are sometimes placed in a document called R&Rs but they must be supported by the CC&Rs.

You cannot control anything someone does on their own private property without some legal authority. For HOAs, that authority comes from the CC&Rs because it is an agreement between owners and is a binding contract. Unless the CC&Rs give the board authority to make rules applying to private property, they cannot do so because it is not part of the agreement.

So, if there is no mention of the R&Rs in your CC&Rs, you cannot place restrictions on private property using them.

Quote: "So, if there is no mention of the R&Rs in your CC&Rs, you cannot place restrictions on private property using them."

Well, unfortunately that is EXACTLY what my HOA board did, at the urging of their attorney and they felt so certain of their position that they launched a lawsuit! Perhaps they thought the homeowner would rollover, but they were wrong. The owner counter-sued and won. It cost the members around $100,000 in lawyers fees--the Association's and the Owners! "Winner-Winner, Chicken Dinner"--the ATTORNEYS!

There IS mention of the R & R in our Covenants, which also have a few "rules" incorporated. The Association is only empowered to promulgate rules which must be ratifed by 50% Members; however, there is no specific authority given to the Association to compel compliance with R & R's which are later adopted by Members regardless of whether the property is common or private. As you and others have stated, the primary duty of the Board is to manage and operate the common property. Where an ARC is authorized by the Declaration, the Board can compel certain aspects of the use of private property.

Our HOA gives the board the power to compel compliance with the CCR's through civil suit only. As of now, there are no constraints on a board to sue, but that could change if the owners adopt a Bylaw requiring membership approval to sue. Our HOA utilizes county Code Compliance for violations such as grass overgrowth and other health/safety nuisance.

Members have rejected, on two separate ballots, an amendment giving the HOA authority to enforce CCR's with fines. However, such an amendment would not give the board the authority to enforce R & R, since the Declaration does not compel owners to comply with later-adopted R & R. That was the judicial decision in the case referred to earlier. The Board has engaged in sabre-rattling in the past, threatening to enforce R & R with fines regardless of Covenant authority, and perhaps that is why the Membership has rejected the notion of fines/penalties administered by their neighbor-volunteer directors.

The intention of the Developer must be strictly construed in the clear language of the Declaration and unless there is a specific written authority, the document will be (as another poster stated) construed in favor of the homeowners' free use of their property! In law, the Declaration is treated as a contract and it cannot be re-interpreted and unilaterally changed except as unambiguously stated in the original contract.

What I put in BOLD above does list the Rules & Regulations as a “Governing Document”. That is potentially why the attorneys are stating they need to be now recorded to be effective to meet the new statute. I would contend this is also to help new buyers in also being able to read and know the R&R’s prior to their purchase, as many buy and then are slapped with this document after the fact. Filing helps promote transparency and which is a good thing.