Use Rules to narrow down in CC&R

Started by KatharinaW • 18 replies • 561 views

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KatharinaW
Posts: 55

Posted:

Hi all,
I am fairly new to the page and new to the board and am only starting out to understand. So bear with me please.

Our CC&R state some use restrictions, as I am sure are normal. My question is, can these be narrowed down through rules and regulations or not.
As an example:
"No trucks, commercial vehicles, boats, trailers, campers or mobile homes shall be parked or stored on any Lot unless the same are in a garage or at the rear of the dwelling and out of the view form the curb in front of the dwelling; provide however, that the reasonable use of such vehicles as may be necessary during construction of a home on any lot shall not be prohibited by this requirement."
Can a rule now narrow the "commercial vehicle" and "truck" definition down to "no dual rear axle vehicles", although they may be used for private use only and are not considered to be commercial vehicle by any DOT standards?

I was under the impression that the CC&R should set the boundaries, the ByLaws give the ground rules and the rules and regulations add to these two topics, which may need revision more often. But not clarify or further narrow down or change the definition of anything in the CC&R and ByLaws. Am I mistaken?

Any input is very much appreciated.
Thank you so much

AugustinD
Posts: 5,144

Posted:

In the last 30 years or so, "trucks" have developed into one of those special situations where Boards should be thoughtful and not take the CC&R at face value. Attorneys often advise that the original CC&Rs on trucks may no longer be legally valid. To get a feel for why this is, read California Supreme Court opinion
Bernardo Villas Management Corp. v. Black (1987), https://law.justia.com/cases/california/court-of-appeal/3d/190/153.html . Then google on {HOAs trucks}.

Else ordinarily a Board-created Rule cannot re-define a noun (or gerund) in a CC&R. E.g. Suppose the CC&Rs said, "Section 23: Smoking shall be prohibited in condominium units." The Board creates a rule that says, " 'Smoking' pursuant to CC&R Section 23 shall be defined to be the use of marijuana joints, bongs and related paraphernalia requiring a flame to start. Said "Smoking" is hereby prohibited in units." In this case, I would opine that the Rule is an attempt by the Board to amend the CC&Rs, whereas CC&R amendments in fact require a vote of the membership. Hence the subsequent failure of the HOA to act on a complaint of tobacco cigarette smoking, with the Board pointing to the rule as its grounds for not acting, would be a violation of the covenants.

In my opinion, your HOA could, via a Rule, re-define "truck" to be a dual rear axle vehicle. But even this may pose problems. The issue comes up a lot here.

KatharinaW
Posts: 55

Posted:

Thank you so much for the very informative answer and the link to an actual ruling. In our case it’s not a pickup truck but an only personal used “semi truck” looking freight liner M2. It’s very well kept up and typically parked in the owners driveway. And to top things off - the owner is on the board as well.
Additionally we live in oil&gas country with actual commercial heavy duty pickup looking truck (which no one complains about) and lots of company issued normal F-150 style trucks, which also no one seems to care about.

It’s a sensitive subject and everyone has an opinion, but I’d like to make sure we follow the rules and I’d like to be able to argue that way as well.

So thanks again!

RoyalP
Posts: 1,104

Posted:

The issue is:

Will a Pennsylvania Court find the 'existing' CCRs to be reasonable in TODAY's world?

Many people ROUTINELY drive DOT classification 'truck' vehicles state registered as passenger class vehicles EVERY day.

The car manufacturers have 'pawned off' these DOT non-passenger vehicles so that the passenger vehicle safety requirements need not be met.

Look at the DOT sticker on your driver door frame for the DOT classification (usually lower right as you look in).

Any class OTHER than 'passenger' CAN and very well WILL roll over on dry level asphalt WITHOUT hitting anything if AGGRESSIVELY steered and braked (albeit ABS has mitigated the tendency).

To repeat:

The issue is:

Will a Pennsylvania Court find the 'existing' CCRs to be reasonable in TODAY's world?

GenoS (Florida)
Posts: 4,276

Posted:

An actual personal-use semi... Hahahahaha. This is what happens when people decide that pickup truck no longer have a pejorative connotation. It's a slippery slope and the pickup truck is a gateway vehicle to "Jethro By-The-Tree" indistrial-park aesthetics.

If the CC&Rs or rules say "no trucks" why do people insist on violating them with some sort of rural justice argument? Willful violations are the worst kind. If you just gotta have your truck-y fix then amend the GD documents and have at it.

A semi parked in a carport.... yeah, that's where I want to live! Yeeeeeee Hawwwwww!

RoyalP
Posts: 1,104

Posted:

perhaps you would like MY car parked instead ?

go ahead, just try to write a rule banning it

KatharinaW
Posts: 55

Posted:

Quote:

Posted By GenoS on 05/21/2019 12:46 PM
An actual personal-use semi... Hahahahaha. This is what happens when people decide that pickup truck no longer have a pejorative connotation.!

It’s not a semi - look it up. Shaquille O’Neil actually drove one as a private vehicle. And this one is used for a RV.

And you’re right - we are in Yeeee-Haaaaawwww country here

KatharinaW
Posts: 55

Posted:

Quote:

Posted By RoyalP on 05/21/2019 12:55 PM
perhaps you would like MY car parked instead ?

go ahead, just try to write a rule banning it

Love it!

RichardP13 (California)
Posts: 3,868

Posted:

So can I bring this definition i to a court of law?

https://en.wikipedia.org/wiki/Truck

KatharinaW
Posts: 55

Posted:

Quote:

Posted By RichardP13 on 05/21/2019 1:25 PM
So can I bring this definition i to a court of law?

https://en.wikipedia.org/wiki/Truck

Me personally I would never use anything from Wikipedia as a definition. To be used in a court. I did find this:

http://www.dot.state.pa.us/public/DVSPubsForms/BMV/BMV%20Fact%20Sheets/Commercial%20Vehicle%20Registration%20Rqmts.pdf

RichardP13 (California)
Posts: 3,868

Posted:

It is heads and tails better than the link you posted.

You mentioned you wanted to ban dually's. A person has a 42 foot 5th wheel legally store at a RV storage site and uses it regularly 4 times a year to travel. Gross weight is 18,000 pounds which would require a one ton dually truck. Are you saying that is a commercial vehicle? Because you post says a commercial vehicle is for transporting goods or passengers for compensation.

FredS7 (Arizona)
Posts: 927

Posted:

Quote:

Posted By AugustinD on 05/21/2019 8:49 AM
In the last 30 years or so, "trucks" have developed into one of those special situations where Boards should be thoughtful and not take the CC&R at face value. Attorneys often advise that the original CC&Rs on trucks may no longer be legally valid. To get a feel for why this is, read California Supreme Court opinion
Bernardo Villas Management Corp. v. Black (1987), https://law.justia.com/cases/california/court-of-appeal/3d/190/153.html . Then google on {HOAs trucks}.

Else ordinarily a Board-created Rule cannot re-define a noun (or gerund) in a CC&R. E.g. Suppose the CC&Rs said, "Section 23: Smoking shall be prohibited in condominium units." The Board creates a rule that says, " 'Smoking' pursuant to CC&R Section 23 shall be defined to be the use of marijuana joints, bongs and related paraphernalia requiring a flame to start. Said "Smoking" is hereby prohibited in units." In this case, I would opine that the Rule is an attempt by the Board to amend the CC&Rs, whereas CC&R amendments in fact require a vote of the membership. Hence the subsequent failure of the HOA to act on a complaint of tobacco cigarette smoking, with the Board pointing to the rule as its grounds for not acting, would be a violation of the covenants.

In my opinion, your HOA could, via a Rule, re-define "truck" to be a dual rear axle vehicle. But even this may pose problems. The issue comes up a lot here.

I disagree completely. While my opinion may not fly in CA I believe that the Rules are precisely the place where the board must clarify or define things (although clearly it must not do so in conflict with the CC&Rs).

To believe otherwise opens us up to disputes about whether city law definitions, state law definitions, or dictionary definitions apply. And if dictionary, which dictionary?

NpS (Pennsylvania)
Posts: 4,216

Posted:

Hi Katharina.

Have a decent understanding of applicable PA laws.

We're going through similar turmoil here. Our CC&Rs say:
- residential only, no businesses.
- no commercial vehicles.

Problem with the first rule is that it was written 35 years ago before there were internet businesses.
Problem with the second rule is - What's the difference between personal and commercial vehicles anymore?

In our opinion, we'll have to amend our CC&Rs - add definitions that most people can live with.

Our problem is that, until we amend what we have, we're reluctant to enforce because what we have probably won't stand up in court.

We're putting together a task force to rewrite our CC&Rs to make them more consistent with modern day living.

IMO, it's going to be a long hard road. No shortcuts. Lots of noise, but it needs to get done.

Remember, CC&Rs control Bylaws, and Bylaws cannot narrow CC&Rs.

Sikubali jukumu. Read all posts at your own risk.

KatharinaW
Posts: 55

Posted:

Quote:

Posted By RichardP13 on 05/21/2019 1:42 PM
It is heads and tails better than the link you posted.

You mentioned you wanted to ban dually's. A person has a 42 foot 5th wheel legally store at a RV storage site and uses it regularly 4 times a year to travel. Gross weight is 18,000 pounds which would require a one ton dually truck. Are you saying that is a commercial vehicle? Because you post says a commercial vehicle is for transporting goods or passengers for compensation.

Apologies for the misunderstanding.

In my opinion, since the freightliner is used for personal RV use only, it is not a commercial vehicle, as it doesnt meet the PennDOT definitions I mention above and therefor is can be parked in the owners driveway.

Another board member now mentioned, to use a rule to narrow down the word „commercial vehicle“ to include everything with a dual axle.

My question is, can this even be done (I don’t think it should be done, as this seems to me like an attempt to use a rule to narrow down something written in the CC&R, just to not having to go through the process of changing those...).

I don‘t want to ban anything. I feel this is coming close to telling people what car they can and cannot drive and I thought we live in a free country. Honestly I have a bigger issue with not well maintained and dirty cars, than with a well kept freightliner. But again, this is my OPINION and to me a board is to follow the CC&R and ByLaws and Rules without adding their OPINION on things.

KatharinaW
Posts: 55

Posted:

Quote:

Posted By NpS on 05/21/2019 7:01 PM
Hi Katharina.

Have a decent understanding of applicable PA laws.

We're going through similar turmoil here. Our CC&Rs say:
- residential only, no businesses.
- no commercial vehicles.

Problem with the first rule is that it was written 35 years ago before there were internet businesses.
Problem with the second rule is - What's the difference between personal and commercial vehicles anymore?

In our opinion, we'll have to amend our CC&Rs - add definitions that most people can live with.

Our problem is that, until we amend what we have, we're reluctant to enforce because what we have probably won't stand up in court.

We're putting together a task force to rewrite our CC&Rs to make them more consistent with modern day living.

IMO, it's going to be a long hard road. No shortcuts. Lots of noise, but it needs to get done.

Remember, CC&Rs control Bylaws, and Bylaws cannot narrow CC&Rs.

Thank you for this. I think your approach sounds like the most sensible approach and I feel like this is something we need to do as well. And I also think we cannot enforce the rule currently in place against a personal use vehicle, that doesnt meet the defined criteria for a mandatory commercial vehicle registration by PennDOT.

KatharinaW
Posts: 55

Posted:

Quote:

Posted By FredS7 on 05/21/2019 3:22 PM

When you say „define things in the rules, but not in conflict with the CC&Rs“ I completely agree with you, but I am trying to find out what that line is. Where becomes a definition a conflict?

JaredC (Texas)
Posts: 264

Posted:

CC&R's lay the groundwork of rules that everyone must follow. By-Laws are about how the board operates, elections quorums etc. Rules & Regs typically add detail to the CC&R's.

For example our CC&R's have some very specific rules however they also state the board can come up with "reasonable rules and regulations". 40 years ago there were no leash laws and our covenants don't mention picking up dog poop. By today's standards it is reasonable to include both of those item in our Rules & Regs especially due to similar city laws.

So can your rules and regs add detail to what is considered a commercial vehicle? Probably. But it must be reasonable.

RichardP13 (California)
Posts: 3,868

Posted:

The language from the OP's CCRs is similar, if not exactly what another person posted about vehicles. With a half million HOA's in the U.S. you can count on one hand the number of governing documents written specifically for the community whose name is on the cover of those docs. The rest are boilerplate docs that a law firm buys for a couple thousand dollars as templates. I know because I worked for a law firm that did just that.

There are a number of communities where parking is a issue. Unfortunately, people can't seem to find the middle ground and it only get more complicated when you bring lawyers into the mix.

RoyalP
Posts: 1,104

Posted:

XYC HOA, Inc.

CC&R

ARTICLE VII
USE RESTRICTIONS

Section 1. Land Use. All Lots shall be used for residential purposes only. No Lot may be
subdivided or its boundaries changed where the result would be a decrease in th,~size of any Lot,
without the written approval of the Board of Directors.
Section 2. Parking.
(a) All Lots have parking spaces for a minimum of two (2) vehicles. Parking of any
vehicles on lawns, by residents or guests, is prohibited.
(b) No commercial vehicles*, campers, trucks and vans over 3/4 ton, recreational vehicles,
trailers, boats, tractors, motorcycles, motor scooters (other than electric wheelchairs)
or ATV's may be parked or kept overnight where they are visible (covered or
uncovered) on any residential Lot;
(c) Temporary parking is available at the Clubhouse parking lot and long-term parking is
available in the RV Storage Area for the vehicles described above. Parking in these
areas is at your own risk. Owners of vehicles parked in the RV area are required to
identify such vehicles on a form provided by the Board of Directors for the purpose of
insurance protection.
* A commercial vehicle is any vehicle outfitted with utility/tool boxes, equipment
racks/devices, as well as stake bodies/beds used for the storage/transport of
machinery/equipment/supplies.
.
.
.
.
Section 10. No signs or other advertising devices shall be displayed upon any
property which are visible from the exterior of the dwelling thereon or on the Common Area, or
in the facilities thereon, without prior written permission of the Board of Directors. However,
owners may post "for sale" or other marketing related signs on their Properties until such time as
it has been sold.

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