Does a County code restriction override an HOA covenant

BillB33 (Florida)
Posts: 4

Posted:

Does a county code override an HOA covenant restrictioin

GeorgeS21 (Florida)
Posts: 3,808

Posted:

I don’t know.

GenoS (Florida)
Posts: 4,276

Posted:

It depends. HOAs routinely have restrictions that are more restrictive than local ordinances, and these are enforceable. HOAs may not have restrictions that are LESS restrictive than local ordinances. Usually.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By BillB33 on 03/22/2020 11:54 AM
Does a county code override an HOA covenant restrictioin

Possible. Covenants can be tougher than a county code, but cannot override such.

Classic example is parking if streets not private. County codes can say overnight street parking is allowed but Covenants say no overnight parking allowed. Members of the HOA have to follow the Covenants as they agreed to them. Now the public could park overnight as they did not agree to the Covenants.

Another classic. County says 8ft fences are allowed. Covenants say fences cannot be taller than 6ft. Members of the HOA have to follow the Covenants as they agreed to them.

Obviously there is something you are having and issue with. What is it?

BenA2 (Texas)
Posts: 1,273

Posted:

In the hierarchy of documents laws always take precedence but only if they conflict with the covenants. If it is possible to be in compliance with the covenant and the county code, you must.

For example, if the county code does not restrict having chickens and the covenants don't allow them, you cannot have them. Not having them would not violate the county code.

If the county code says, HOAs cannot restrict a right to have chickens on a residential lot, the covenant would be null.

BenA2 (Texas)
Posts: 1,273

Posted:

Quote:

Posted By JohnC46 on 03/22/2020 1:33 PM

Another classic. County says 8ft fences are allowed. Covenants say fences cannot be taller than 6ft. Members of the HOA have to follow the Covenants as they agreed to them.

A perfect example of what I was trying to say. A six foot fence would be in compliance with both the county code of 8' and the covenant of 6' so they do not conflict.

BillB33 (Florida)
Posts: 4

Posted:

Thank you for everyone's input. It is sincerely appreciated, and this site is a fantastic resource. Bill

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By JohnC46 on 03/22/2020 1:33 PM

Classic example is parking if streets not private. County codes can say overnight street parking is allowed but Covenants say no overnight parking allowed. Members of the HOA have to follow the Covenants as they agreed to them. Now the public could park overnight as they did not agree to the Covenants.

I would respectfully disagree on this issue. If the HOA does not OWN the property they do not have the right to regulate PUBLIC property. Some states such as NV have even had to add such language to their HOA Statutes to get this point across when HOA’s in past were fining owners regarding use of the public streets.

My recommendation is read your State Statute definitions ... and for example my state notes:

"Common interest community" means real estate described in a declaration with respect to which a person, by virtue of such person's ownership of a unit, is obligated to pay for real estate taxes, insurance premiums, maintenance, or improvement of other real estate described in a declaration. Ownership of a unit does not include holding a leasehold interest in a unit of less than forty years, including renewal options. The period of the leasehold interest, including renewal options, is measured from the date the initial term commences.

Again ... “Real Estate Described in a Declaration” is going to be real estate the owners own and any “common area” property owned by the HOA. If the common area property does not contain streets as private property then it is not owned by the HOA. If the declaration does not note any maintenance or improvement of the streets as “other real estate described in the declaration”, then it is not considered part of any “common interest community”.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By JanetB2 on 03/28/2020 10:31 PM

Posted By JohnC46 on 03/22/2020 1:33 PM

Classic example is parking if streets not private. County codes can say overnight street parking is allowed but Covenants say no overnight parking allowed. Members of the HOA have to follow the Covenants as they agreed to them. Now the public could park overnight as they did not agree to the Covenants.

I would respectfully disagree on this issue. If the HOA does not OWN the property they do not have the right to regulate PUBLIC property. Some states such as NV have even had to add such language to their HOA Statutes to get this point across when HOA’s in past were fining owners regarding use of the public streets.

My recommendation is read your State Statute definitions ... and for example my state notes:

"Common interest community" means real estate described in a declaration with respect to which a person, by virtue of such person's ownership of a unit, is obligated to pay for real estate taxes, insurance premiums, maintenance, or improvement of other real estate described in a declaration. Ownership of a unit does not include holding a leasehold interest in a unit of less than forty years, including renewal options. The period of the leasehold interest, including renewal options, is measured from the date the initial term commences.

Again ... “Real Estate Described in a Declaration” is going to be real estate the owners own and any “common area” property owned by the HOA. If the common area property does not contain streets as private property then it is not owned by the HOA. If the declaration does not note any maintenance or improvement of the streets as “other real estate described in the declaration”, then it is not considered part of any “common interest community”.

My present HOA attorney and my last HOA attorney (both in SC) would disagree with you.