Conflicts in documents, what takes precedence

Started by JohnM93 • 8 replies • 469 views

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JohnM93 (Ohio)
Posts: 57

Posted:

Our CCRs have a section 11.04 covering approval of plans and they stipulate “30 days prior to completion of a home landscape plans should be submitted”.

But at the end of the CCRs we have “EXHIBIT B” construction standards, and this says “a landscape plan must accompany a building plan submission” and in the next numbered item that signed and approved building plans and landscape plans are required to start building.

Additionally when one wants to submit building plans, the ARB has a builder checklist that includes a requirement that landscape plans are submitted within 90 days of building plan approval with an attached landscape design review application.

Personally I think it is silly to talk about landscape plans until final grading and all flat work is in place, but that aside, which of the 3 dates above is the binding one? The first option makes the most sense, but I suspect Exhibits are intended to be amendments. And the 3rd option probably has no weight as it is not part of the CCR.

I know the board is clueless. Maybe the real estate agent knows, but hoping someone here knows.

BenA2 (Texas)
Posts: 1,273

Posted:

I think if your CC&Rs have conflicting rules you have no choice but follow the rule that most benefits the owner.

There may be court precedents in your state that address this so you could consult an attorney but you can't go wrong if you err in favor of property rights.

SheliaH (Indiana)
Posts: 6,964

Posted:

This sounds like it was written when the developer was still running the community. If that's still the case, ask it's representative. If not, and you've already asked the board and they weren't sure either, ask them to consult the association attorney. I would think this isn't the first time this has come up.

Otherwise, why not make your case before the board anyway? They may agree with you and if they do, you can also suggest they consider passing a resolution that makes this association policy. They can work with the association attorney in writing it so it doesn't conflict with the CCRs, as it would still require prior approval by the board.

This is an example of why HOA board's should work to delete references to the developer when the community is turned over to the homeowners. I bet there are other items in the CCRs that have similar references and should be modified.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

JohnM93 (Ohio)
Posts: 57

Posted:

I read deeper and it appears that the CCRs then do reference that details are in "Exhibit B" - but i did talk to the developer, and their intent was that you submit Landscape plans near completion of the house.

The board is new (and worthless) - the community was turned over 8 months ago and they don't have a clue. I already to fight to get my plans approved - they wanted me to add a window here, change a color there because one member "thought it would look better".

Some of the conflict is the board itself demanding more details then were ever required by the developer or are in the CCRs.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By JohnM93 on 07/19/2020 2:05 PM
I read deeper and it appears that the CCRs then do reference that details are in "Exhibit B" - but i did talk to the developer, and their intent was that you submit Landscape plans near completion of the house.

The board is new (and worthless) - the community was turned over 8 months ago and they don't have a clue. I already to fight to get my plans approved - they wanted me to add a window here, change a color there because one member "thought it would look better".

Some of the conflict is the board itself demanding more details then were ever required by the developer or are in the CCRs.

Get on the BOD and shape them up. I stay on my BOD to prevent other Aholes from getting elected......LOL

SheliaH (Indiana)
Posts: 6,964

Posted:

It may be the board could be doing things more effectively, but calling them "worthless" won't get you anywhere. Remember, they're the folks who, for better or worse, are the ones who must improve your plans, so you'll need to figure out a way to work with them.

If one board member thinks adding a window or whatever "looks better," ask if that's based on what the CCRs say or if it's just his/her opinion. I'd also ask the other board members what they think (this person is only one vote, after all). Board members should also understand the difference between making sure an exterior change (or plan in this case) is based on an objective design standard vs. a simple opinion. To require a fence must be 4 feet high, placed in the backyard only, be white or off white, and made of vinyl is objective. Things get muddy when one person likes vinyl, another prefers cedarwood, someone else wants an iron fence, etc.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Sorry, didn’t realize - JohnM93 - you are NOT on the Board?

OK, wow, then great opportunity for you to join and help!

TimB4 (Tennessee)
Posts: 21,062

Posted:

Order of Precedence:

Federal Laws
Federal Regulations
State Laws
State Regulations
County Codes
City Ordinances
Deed Restrictions (this would be the covenants along with easements, etc.)
Articles of Incorporation (if the Association is incorporated)
Bylaws
Board Resolutions (architectural guidelines, collection policies, etc.)

If there is a conflict, the higher document must be complied with unless the higher document defers control to a lower document (often happens in corporate laws).

Note: comprehend what a conflict is.

A County code restricting fences to 8 feet and an HOA covenant restricting the height to 4 feet is not a conflict.

Covenants stipulating that plans should be submitted 30 days prior and a resolution requiring the plans at an earlier date is not a conflict.

We are not even getting into the nuances of can vs. shall vs. may.

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