Complying with county law

Started by LexiM • 19 replies • 871 views

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LexiM (Florida)
Posts: 7

Posted:

The bylaws for our community have not been updated ever since they went into effect 80's. Other HOAS in the area have amended them as local and state laws have changed. Amendments require approval by majority, but aren't we supposed to have the attorney comb the documents every so often to ensure we comply with local law? Our county has strict laws regarding short term rentals (180 days) and our docs say 30 days or more. 180 day restriction went into effect in 2014 and they never updated.

Can the board amend the law to comply with the county without a vote? To my knowledge you can always be more restrictive than local law, but not less.

LexiM (Florida)
Posts: 7

Posted:

I meant to say CC&R's.

JenniferG12 (Texas)
Posts: 103

Posted:

Quote:

Can the board amend the law to comply with the county without a vote? To my knowledge you can always be more restrictive than local law, but not less.

Yes, a resolution stating the change is to comply with the law and citing that law. Naturally, such a thing cannot depend on a vote.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By JenniferG12 on 09/12/2018 12:38 AM

Can the board amend the law to comply with the county without a vote? To my knowledge you can always be more restrictive than local law, but not less.

Yes, a resolution stating the change is to comply with the law and citing that law. Naturally, such a thing cannot depend on a vote.

This depends on State law and language in the governing documents.
It would not fly in Virginia.

Although it's good to review and amend as necessary every x years (I like 10, others might like 5 or 20), you don't have to.
If there is a conflict between the Covenants and applicable laws, the law must be complied with unless the law defers to the covenants.

LexiM (Florida)
Posts: 7

Posted:

Called the county and they pulled the development plan. They state our complex is not authorized for any short term rentals less than 180 days. (State is florida)

JenniferG12 (Texas)
Posts: 103

Posted:

Quote:

Posted By TimB4 on 09/12/2018 1:51 AM

Posted By JenniferG12 on 09/12/2018 12:38 AM

Can the board amend the law to comply with the county without a vote? To my knowledge you can always be more restrictive than local law, but not less.

Yes, a resolution stating the change is to comply with the law and citing that law. Naturally, such a thing cannot depend on a vote.

This depends on State law and language in the governing documents.
It would not fly in Virginia.

Interesting. So what would you do if there was a law you had to comply with? Put it up for a vote? This hypothetical would be a law that does not defer to governing docs. Must have compliance.

BarbaraT1 (Texas)
Posts: 821

Posted:

I am not a lawyer, and this is not legal advice and this may only be applicable to Texas. But in my experience as a manager, I have not had associations amend the CC &Rs to address conflicts with higher authorities. If there is a covenant that is in opposition to county, city, state or federal law, the covenant is simply invalid. In Texas, the state property code explicitly states this when it comes to state laws.

If it's a matter of the covenant being more strict than county or city law - that's not a conflict. HOA covenants can be more strict, they just can't be less. If your county disallows short term rentals under 180 days, the HOA can still have its own restriction of no rentals under 30 days.

BarbaraT1 (Texas)
Posts: 821

Posted:

Quote:

Posted By BarbaraT1 on 09/12/2018 6:14 AM
I am not a lawyer, and this is not legal advice and this may only be applicable to Texas. But in my experience as a manager, I have not had associations amend the CC &Rs to address conflicts with higher authorities. If there is a covenant that is in opposition to county, city, state or federal law, the covenant is simply invalid. In Texas, the state property code explicitly states this when it comes to state laws.

If it's a matter of the covenant being more strict than county or city law - that's not a conflict. HOA covenants can be more strict, they just can't be less. If your county disallows short term rentals under 180 days, the HOA can still have its own restriction of no rentals under 30 days.

Sorry I misread the first post. In this case, you're allowing rentals of at least 30 days, and the county requires a minimum of 180 days. I still don't think amending the documents is necessary. That covenant is just moot.

LetA (Nevada)
Posts: 2,679

Posted:

I'm not a lawyer, but check your governing documents. Hopefully it has a clause that says " we shall follow all federal, state and local ordinances". That clause "should" cover you regarding short-term or Airbnb bruha-ha.

JenniferG12 (Texas)
Posts: 103

Posted:

Quote:

We do. We have a few resolutions added to the bylaws in our history that were done to comply with Federal Law. Such documents are dedicatory instruments and must go to the county to be recorded.

JenniferG12 (Texas)
Posts: 103

Posted:

Quote:

Posted By JenniferG12 on 09/12/2018 7:25 AM

We do. We have a few resolutions added to the bylaws in our history that were done to comply with Federal Law. Such documents are dedicatory instruments and must go to the county to be recorded.

(the Resolution is a proper amendment. Our bylaws state this may be done w/o a vote to comply with higher laws). I disagree that it's best to just leave it and consider it moot. There is no reason to not do the simple resolution and bring our governing docs into compliance.

FredS7 (Arizona)
Posts: 927

Posted:

Is there any reason the HOA cannot just publish a document listing the provisions that are in conflict with local law, and therefore will not be enforced?

LexiM (Florida)
Posts: 7

Posted:

Thanks all for the replies. The problem we face now is that we have recently had a lot of sales (15 in the last two months) and some of these new owners have no regard for any of the rules. It was also found that realtors were not informing potential buyers that this complex does not allow short term rentals, and one of them has been "airbnb-ing" their unit. Other owners are not pissed because they do not want this happening, and county clearly states we are prohibited to allow anything less than 180 days as rentals on our property. We are also near a tourist area, and we have been zoned specifically for residential.

I believe a resolution on the matter would be the easiest and best way to go, I will bring it up at our meeting with the attorney.

LexiM (Florida)
Posts: 7

Posted:

residents are NOW* pissed.

This community has been very quiet up until recently, and we now have loads of complaints coming in from homeowners. Parking has become a problem, loud children screaming at the pool, people vacationing who don't understand we are not allowed to night swim, drinking alcohol at the pool, etc. One homeowner stated they will inform the insurance company that commercial activity is taking place on the property, others have filed complaints with the county and the county has already shut down one of the airbnb units - that owner is now trying to sell their property to leave.

Bottom line is that we never had any issues, and with the rush of new "younger" owners coming in for the purposes of doing airbnb, we are getting flooded with complaints from owners. We are also a gated community and these new owners are just giving out security codes for clubhouse and gate, and one owner was acosted and sworn at by someone who had their car towed because the owner "ruined their vacation".

So yea, just looking to do what's best to end the nerves around here.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

I may be slow on this one ...

If it is against County ordinance to rent for less than 180 days and owners are renting for less than 180 days, then the Board should consider a registered letter that notifies those renting for less than 180 days they are in violation of County ordinance, that the County has been formally notified (another registered letter) and that the HOA attorney has been requested to prepare for a lawsuit.

Don't make this about your docs if the issue is a violation of the law/ordinance.

This seems simple - but, perhaps I have missed something?

LexiM (Florida)
Posts: 7

Posted:

Some of the new owners who have listed their condos up for short term rental, have "rented" them to corporate housing companies (long term) and the are in fact renting them out on airbnb. The owners who have been sent letter already fired back at the last meeting saying that they are not breaking any rules as we do not have any verbiage about subleasing. Unfortunately we are a new board trying to clean up the financial mess of the previous dictatorship that had a hold here, so as expected they never had the attorney updated and amend the documents to comply with law.

There is another condo hoa a few miles from us who have their stuff in tip top shape, with the correct verbiage about the 180 days and that no portion of the home, except the entire home, may be rented out. We do not have that.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

In an ideal world Covenants and Bylaws would be updated to reflect changes such as no longer a Declarant, nothing that is against the law, etc. In reality it is expensive to do so. In the case of docs having something illegal in them, the law overrides thus when push comes to shove, the law wins.

TimM11
Posts: 354

Posted:

I would notify the county and let them enforce the law. It's their restriction, after all.

JenniferG12 (Texas)
Posts: 103

Posted:

Quote:

Posted By JohnC46 on 09/12/2018 6:13 PM
In an ideal world Covenants and Bylaws would be updated to reflect changes such as no longer a Declarant, nothing that is against the law, etc. In reality it is expensive to do so. In the case of docs having something illegal in them, the law overrides thus when push comes to shove, the law wins.

It's *not* expensive to amend a bylaw via board resolution to comply with a higher law, and record such at the county. It's not like new ones are popping up daily. It IS costly and time consuming to deal with inconsistencies. The OP is following the right course.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

This would also apply in FL from what I understand (also not a lawyer). If the documents conflict with any laws, ordinances, county code, etc. then those provisions are treated as if they don't exist.

If you've got so many of those types of issues then amending the documents is probably a good idea to avoid confusion, especially where new homeowners are concerned. Having to explain what's valid in the CCRs and what's not because new laws supercede some of the older provisions of the CCRs gets tedious.

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