How to handle items not covered in Bi-Laws CC&R's ect

Little Background,

Our By-Laws were recently re-written and are a drastic improvement over the old By-Laws, not perfect mind you, but a big improvement.

Unfortunately our CCR's are not so fortunate. They are hopelessly ambiguous and our lawyer often says that since our CC&R's don't define what a rule often stipulates that we must refer to case law on whatever the topic is were discussing.

Short example....

Our CCR's prevent "multi family dwellings". But since our CC&R's don't define what a "multi family dwelling" actually is, we have to pay a lawyer to tell us what it is (3 or more families or unrelated persons who rent from a single owner). All of this so we can restrain our rogue president from asking a Woman in her 20's to evict her college roommate. Please, don't ask!!

All of this leads me to my question....

As Board Vice president I have asked the Board to consider creating a document that I call "best practices". It would be a working document to cover topics that aren't covered by By-Laws, CC&R's, State Law, and in our case Roberts Rules as they take precedence if none of the former speaks to the issue.

After all of these documents there is still plenty to address.

We have a rule that states "no above ground swimming pools". However, since the CC&R's don't define what a "above ground swimming pool" actually is, we took the time as a board to research and came to the conclusion that any inflatable pool under 60sq ft (roughly 10x6) and 22" in depth, or 8' around 22" deep could be considered a "wading" pool and would not violate the above ground pool rule. There were a few other stipulations, but you get the point. The goal here is to make a decision among ourselves. We posted a public agenda and invited the public to speak before making our decision.

This would be an example of a "best practice" or precedent. It saves us money by not having to run to the lawyer every 5 min and if kept in one place could help future boards in making decisions, and eventually could be used to help amend our CC&R's. I realize that there are times when a lawyer is unavoidable, but my hope is to create something we can all agree on and prevent some of the unnecessary calls to Mr. $500 an hour.

Obviously, anytime we pay the lawyer to make a decision of this kind would also be included in the document.

The only thing I'm unsure of is, if the Board I'm on now votes to adopt and follow these "rules", what happens if a new member comes on the Board, are they obligated to follow them? Would we have to re-vote each "best practice" over again? Is this whole process hopeless and should I just accept the fact that our legal bills are going to be sky high?

Does anyone else have something like this?

Thanks....

First, as usual, your mileage may vary as different states/localities have differing guiding statutes and ordinances.

But to share our situation, our CC&Rs have this provision:

Section 7. Board's Determination Binding. In the event of any dispute or disagreement between any owners relating to the property subject to this Declaration, or ANY QUESTIONS OF INTERPRETATION OR APPLICATION of the provisions of this Declaration or the Bylaws, the determination thereof by the Board shall be final and binding on each and all such owners.

Therefore, when we make a RESOLUTION or a DEFINING GUIDELINE defining something or interpreting it, we also include the following:

Changes to these guidelines: Any changes to the above guidelines for any reason, whether by individual-case variance request (waiver) or by Architectural Committee guideline revision, must first be reviewed by the XXXX XXXX Board of Directors and receive majority approval before final variance or revision can be awarded or implemented.

Policy guidelines: These policy guidelines have been reviewed and approved by the XXX XXXX board of directors. It is the intent of the board of directors that these guidelines shall remain permanent.

Approved by XXXX XXXX Board of Directors on: July 5, 2005.
Amended and approved by XXXX XXXXX Board of Directors on: May 8, 2007.

---------------------------- (this was applied to a set of guidelines on outbuildings, specifically sheds. we changed it to account for current building materials such as composite, etc.)

So yes, such interpretations or definitions can be changed later on down the road, but in our association it would take more than 1 board member to do it. It would have to pass by the majority of directors.

We, too, have used an attorney to draft some of the interpretations we have resolved. That's money well-spent because he is more aware of any conflicts of zoning or statute or ordinance than we might be. I don't know the specifics but there is some sort of # of people/kids to sleeping square-footage. They don't have to be of the same family. It's more a numbers thing.

Multi-family residences are defined by our local zoning restrictions, so we, as a board or as an HOA don't need to define what that means in our CC&Rs. We just contact Inspections, Permits and Licensing [IPL] (which covers zoning and code enforcement) and if the residents don't conform to those provisions, then IPL is the "bad cop" and enforces or fines as appropriate.

we have had two instances. One had 3 families living in a large home, each had at least 2 kids so there were 9 people in a 4 bedroom home. IPL inspected and 2 families were forced to move.

Then in another instance, a homeowner was renting out a home to college students. There were 4 in one 3-bedroom home. All but 2 moved.

In reading this post, as a BOD Member, can you please clear up a point for me?
In our CC&R, under "FURTHER RULES AND REGULATIONS. The Board of Directors by a 2/3 vote at a meeting at which a quorum is present, may from time to time adopt and approve such additional rules and regulations concerning the use, occupancy and maintenance of, and activities conducted upon any Lot or improvements thereon as it may deem necessary or desirable to clarify or supplement the provisions of this Article and such other pertinent provisions of this Declaration so as to promote the purposes and intent hereof."
My question is, if the BOD desires to adopt a rule or further clarify an exisiting Article/Section of the CC&R, how is it created and distributed to the Membership? Do we create a new Document entitled "Rules and Regulations?"
Also, if we do create this Document "Rules and Regulations", and some Homeowners choose not to comply, can we enforce these rules since they are not part of the existing Covenants, nor voted upon by the Membership?We are a fairly new HOA, just about 6 years, and have no such Document existing at present, just Articles of Inc., By-Laws, and CC&R.
Thanks for any input.

ChrisB4 - You posted "Instruct them on how to make decisions, and how to communicate those decisions with members of the Board, or if necessary with our website and newsletter committees."

Committees should perform research and fulfill duties mandated by the Board, and should only make recommendations to the Board so they can be taken under advisement and acted upon. A committee should not be making a decision or implementing something without the authorization of the Board.

For the most part I agree with you. Our By-Laws call for three standing committees and as such, in RRO, standing committees may be given certain executive powers. In the case of our ARC they are allowed to send a letter to a homeowner (CC'ing the BoD) telling them they are in violation of a rule without having to send it to the BoD first.

As I can't amend the By-Laws overnight, I asked the Board to instruct each committee with executive powers to also include a document that clearly defines a homeowners rights under state, local or our governing documents, including the right to appeal the decision of any standing committee with the Board. The Board always maintains the final say.

Having said that, I think the "best practices" book I'm advocating will prevent problems by defining exactly what we expect of the standing committees so that if there are problems with the conduct of a committee, then we have rules that will show who is accountable.

Look, its not just committees I'm concerned with. The president here thinks that he can just walk up to a homeowners door and tell them they have to cut their grass, or move their picnic bench into the back yard. The issue here is not whether the President is right about the rules, but how as a Board we will deliver that message to the homeowner.

Incidentally, before anyone responds to this. I called the states attorney and was informed that behavior like this, in my state, is considered harassment. But we have lots of problems like this one, not all are as cut and dry.....

The idea of a "best practices" document is to place rules around problems that are undefined. Believe it or not I'm more concerned about members of our board exploiting the rules more than our homeowners.

ChrisB4 - In my HOA and COA (townhouses and single-family PUD)there is no bylaw requirement to have a standing committee, just that the Board has the power to create committees and that one committee member must be a Board member and liaison. However the Board can create standing committees. I understand your situation now and encourage you to develop guidelines for the committees that have executive privaledge.

Roger after a read, I found what I think your speaking of.....

“Construction and interpretation. The association, to the extent provided herein, may adopt and promulgate reasonable rules and regulations regarding the administration, and the interpretation and the enforcement of the provision of the Declaration. In so adopting and promulgating such rules and regulations and in making any finding, determination ruling or order or in carrying out any directive contained herein relating to the issuance of permits, authorizations, approvals, rules or regulations, the Association shall take into consideration the best interest of the owners to the end that the Property shall be preserved and maintained as a viable community.”

Is that the basis of authority to establish rules beyond what is written?

Though I'm the one that asked the question, I would say do what I did. See if there is a prevision within your CC&R's that grants the Board the right to make "reasonable" provisions and rules.

The format question is tough one. I will probably lobby to have it included in our newsletter and on our website where we have our CC&R's.

I would say the membership should have to abide by any rule made under your particular provision. Personally I have lobbied very hard to publish the Boards agenda well in advance to give homeowners the opportunity to speak to issues. In the end the justification is that if people choose to say nothing, then by lack of their involvement have supported the Boards position.

My interpretation is that the Board would enforce any new provision as it would enforce any existing provision. I believe it's incumbent upon the Board to give any and all homeowners reasonable notice of any new rule or provision and reasonable time to come into compliance if the rule takes affect.
I would also encourage homeowners to call a special meeting if they felt they could show grounds as to why a rule is unfair.

Just my .02

First, Gloria:

" Again, I am inquiring:
1. If the BOD does adopt a new Rule/Regulation or clarifies an existing CC&R Article/Section, in what format is the Membership notified of this new Rule? We do not have a Document existing as we are fairly new so do we draw up a physical Document of Rules and Regulations for distribution?.

Members should always receive copies, at least 30 days ahead of their implemntation (or more if your state or docs require it) and should be notified by mail or personal delivery; copies should be posted on the web site or in the clubhouse if there is one and it has an appropriate space

2. Can the Membership be required to abide by this new Rule? If Members choose not to conform, can the BOD follow the same procedure for remedy as for a Violation of the CC&R? (Letters from the BOD, then from our attorney whose cost will be billed and/or liened to the non-complient Member).

If the documents give the board the authority to develop and enforce rules, then generally yes to both questions, unless there are some specific limitations in the docs or state laws.

3. As these Rules have not been voted upon by the Membership, how far does enforcement authority by the BOD go?
I'd appreciate any direction.

Unless the documents require a vote of the members, then they are ready to go upon adoption and notification, (or usually 30 days after notification). You are limited by the state laws, the CC&R's and "reasonableness", (would a court uphold it as "resaonable")

Some other suggestions, put the rules in the form of a formal resolution - future boards would have to go through at least as much to undo it.

Always invite comments or have meetings before getting serious about a rule. Find out if its needed, if its going to fly and where the concerns are. There's nothing worse than to pass something that isn't supported by a majority of the owners,

Put all of the rules, guidelines, documents (if they can be re-sized and re-printed easily) and put a handbook together that can fit in the "catch-all" kitchen drawer. Put another copy on a web site.

Give each rule the "reasonable" test before adopting it. Have other people (not on the board)read it to see if it makes any sense, or is likely to cause more problems than it fixes. Also, this checks to see if its understandable. You'd be amazed at how many associations try to use legal language on the rules and end up making them incomprehesible and often unenforceable.

Will exceptions be made, and under what conditions, and for how long. An approved "exception" to the rule doesn't establish a bad precedent, and often can keep the association out of the news and courts. Most exceptions deal with health or family emergency/hardship issues.

Joe

Don't forget pictures - worth a thousand words. Show owners doing the right thing - i.e. walking the dog on a leash with a scooper. Positive re-inforcement.

Joe