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New Policy

Started by EdwardR3 • 22 replies • 803 views

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EdwardR3 (Colorado)
Posts: 8
Posted:
Nine “good governance” policies have been mandated by the Colorado Common Interest Ownership Act (“CCIOA”) and must be adopted by associations in Colorado. Our HOA has added a policy to "provide covenant clarification and adopt a standard for parking and storage of vehicles throughout the HOA." It states vehicles cannot be parked on natural vegetation, rocks, pavers or gravel, and no car coverings are allowed. Our CC&R for concerning this does not specify this restriction. It only states cars cannot be parked between 2 and 6 in the morning without approval. Is this a legal Policy? Is it even a Policy? The definitions I find say that the purpose of policies is to set forth a process to be followed with respect to various issues. And a policy is a guiding principle used to set direction in an organization. And they cannot contradict the CC&Rs. Can a Policy be created to tighten our CC&Rs?
MelissaP1 (Alabama)
Posts: 13,836
Posted:
My city has this as an ordinance not to park in the grass area. The HOA has to be compliant with local, state, and federal laws. Do you know what your city rules are on this subject?
Former HOA President
CathyA3 (Ohio)
Posts: 6,299
Posted:
Read your CC&Rs and look for language that gives the board the right to make additional rules and regulations. (Our parking restriction says exactly that.)

HOAs and especially condo associations are notorious for having limited parking areas and too many vehicles to fit in the available space. Boards need to be able to make reasonable rules to address this. Not parking on vegetation seems entirely reasonable to me, especially if the HOA is on the hook for repairing the damage.
LetA (Nevada)
Posts: 2,679
Posted:
The part about parking on pavers bothers me. Here in Vegas, many people use paver bricks for their driveway and it is very aesthetically appealing. I would use language that prohibits parking on sidewalks and pedestrian right-of-ways.
EdwardR3 (Colorado)
Posts: 8
Posted:
Not really my question. My question has to do with - can the Board create a policy that gives rules about parking or anything. Policies are not the same as rules and we already have a rule in the CC&Rs that address that issue. Do you agree the Board is trying to use Policies to dictate restrictions beyond our CC&Rs without going through the process of changing the CC&Rs which would require homeowners approval?
EdwardR3 (Colorado)
Posts: 8
Posted:
Not really my question. My question has to do with - can the Board create a policy that gives rules about parking or anything. Policies are not the same as rules and we already have a rule in the CC&Rs that address that issue. Do you agree the Board is trying to use Policies to dictate restrictions beyond our CC&Rs without going through the process of changing the CC&Rs which would require homeowners approval?
MichaelS56 (Minnesota)
Posts: 858
Posted:
Ed, your HOA has to comply with any new Federal, state, city changes to ordinances. Inform the owners of the changes and the reason(s) for them.
EdwardR3 (Colorado)
Posts: 8
Posted:
Of course, but that not what I'm concerned about. Is there any other HOA that has created a "Policy" that is really a rule or regulation? Is anyone aware of the "Policy" definition in the Fed, State, City laws or ordinances? Does anyone have this problem with their HOA and if so, what did they do about it?
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Ed

One thing a Policy, Rule & Regulation cannot do is override a Covenant or Bylaw. They can be used to clarify and define but not override. As an example, if a Covenant says fences must be wooden, a policy can define height, etc. of the wooden fences but it cannot say metal fences are allowed or that there cannot be fences.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Quote:
Posted By JohnC46 on 03/25/2021 10:11 AM
Ed

One thing a Policy, Rule & Regulations (R&Rs) cannot do is override a Covenant or Bylaw. They can be used to clarify and define but not override. As an example, if a Covenant says fences must be wooden, a policy can define height, etc. of the wooden fences but it cannot say metal fences are allowed or that there cannot be fences.

ADDON
As the BOD makes Policy/Rules & Regulations, the BOD can change/delete them. I have seen BOD Members not re-elected due to owners not liking their position on Policies or R&R's. I have seen BOD Members elected due to owners liking their position on Policies or R&R's.
BenA2 (Texas)
Posts: 1,273
Posted:
Generally, what happens on a homeowner's property is controlled by the CC&Rs. You cannot make policies or guidelines to create new rules except in common areas.

It is going to vary somewhat from state to state based on laws and precedents. My understanding is that in some states a board can clarify CC&Rs with policies and guidelines. In other states, such as Texas, if it's not clearly written in the CC&Rs it cannot be enforced.
EdwardR3 (Colorado)
Posts: 8
Posted:
I agree - if it is clarifying a rule that already exists. Currently the only restrictions we have has to do with "Overnight Parking." They are adding 2 pages of restrictions for parking (not on gravel, pavers, no car covers, etc.) that are not covered in our CC&Rs. Of course, they have included the rule concerning overnight parking, but they are adding way more restrictions. My contention is since there is currently nothing about whether we can park on gravel or pavers, it is, by omission, allowed. Which is why they are trying to place a restriction on it without going through legal procedures of changing the Bylaw. Are they not, in fact, trying to override our Bylaws?
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Quote:
Posted By EdwardR3 on 03/25/2021 1:21 PM
I agree - if it is clarifying a rule that already exists. Currently the only restrictions we have has to do with "Overnight Parking." They are adding 2 pages of restrictions for parking (not on gravel, pavers, no car covers, etc.) that are not covered in our CC&Rs. Of course, they have included the rule concerning overnight parking, but they are adding way more restrictions. My contention is since there is currently nothing about whether we can park on gravel or pavers, it is, by omission, allowed. Which is why they are trying to place a restriction on it without going through legal procedures of changing the Bylaw. Are they not, in fact, trying to override our Bylaws?

Now you are saying whatever is written in your Bylaws. Is this what you were call policy?

Does the Bylaw say you may park your car anywhere you desire as long as it is on your property?
EdwardR3 (Colorado)
Posts: 8
Posted:
I don't understand your first question. We have bylaws. Only 1 bylaws addresses parking and it only concerns overnight parking. Now, along comes the bill requiring 9 mandated policies. So, they create the mandated 9 policies, and add one (not mandated) that places further restrictions concerning parking (2 pages of them). My concern is not about where we can park or not park. My concern is that they have created a "Policy" that is not really clarifying the only bylaw we have about parking that talks ONLY about overnight parking - it is not setting forth a process to be followed if someone does not follow that rule. Which is what policies are supposed to do. It is instead giving further rules about parking as if it was a "Bylaw." If they can create policies that act as Bylaws, then why have Bylaws? Obviously, because they know they cannot get the homeowners to approve of a new bylaw with these new restrictions. Does anyone else have an HOA that has done this? Is it legal? Do the homeowners have to hire an attorney to stop them from creating Policies that are not Policies?
JohnT38 (South Carolina)
Posts: 1,631
Posted:
Bylaws cover how the corporation is to be run. Having anything parking related makes very little sense.
EdwardR3 (Colorado)
Posts: 8
Posted:
Sorry - I should have said Covenants, not bylaws. All those flipping documents are confusing and probably meant to be that way!
KerryL1 (California)
Posts: 14,550
Posted:
Many folks think that "bylaws" means rules. My guess is because word "laws" is in it.

The CC&Rs contain covenants and restrictions, that are often elaborated or or clarified in an HOAs Rules & Regulations. But not in Bylaws, which as JohnT notes are things like elections, offices, director' terms, various types of meetings, etc.
KerryL1 (California)
Posts: 14,550
Posted:
Many folks think that "bylaws" means rules. My guess is because word "laws" is in it.

The CC&Rs contain covenants and restrictions, that are often elaborated or or clarified in an HOAs Rules & Regulations. But not in Bylaws, which as JohnT notes are things like elections, officers, directors' terms, various types of meetings, etc.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Edward

Help me understand. You mention 9 good governance polices that CO has mandated then you go on to say your BOD has added "another policy" to this.

Well what your BOD implemented is really not "policy" but Rules and Regulations (R&Rs) which they can do. That said, an R&R cannot override a Covenant nor Bylaw and they certainly do not have the legal weight a CO mandate has. Adding a "home made" policy on to the CO mandates does not make it a law.

BODs can make and change R&R's so either get the BOD to change it to your liking or work to get a new BOD that will rule to your liking.

Also to make things easier for us to understand, the most commonly used terminology is:

Covenants are Deed Restrictions and attached to ones Deed.

Bylaws are procedures to run your association. They may or may not be attached to the deed.

Covenants and Bylaws typically require a majority of all owners agreeing to the change. The % required can vary from 51% to 100%.

R&R's are passed by and can be changed by the BOD alone. They cannot be added to the deed.

KerryL1 (California)
Posts: 14,550
Posted:
Even if your CC&Rs say nothing else about care s, parking, etc., there might be a broader statement that the HOA (the Board) can make rules to protect, maintain and enhance the common areas, which could include new rules about parking. So, yes, in cases where the CC&R give the Board the latitude to add rules or clarify covenants & restrictions or some such language, HOAs can & do these things.

It will help you understand these things if you learn the language of HOAs--it's the same nationwide. Look at the very front of your CC&Rs and you might find kind of a dictionary that defines, Bylaws, Rules & Regs, etc.

In CA, Boards must give Owners a 28-day comment period on proposed or amended rules. After receiving their comments, the Board meets to approve the proposed rule change, or not, and takes owners' comments into account. (During the pandemic no such notice is needed for relevant rules)

"Policies" are somewhat different than Rules & Regs. Your HOA, for instance, may have a policy about the process to fine owners. Or a policy about how to request an ARC change.
MikeB23 (Louisiana)
Posts: 109
Posted:
Really depends on the State. I would caution you about taking internet advice from those of us not living in Colorado.
EdwardR3 (Colorado)
Posts: 8
Posted:
Yes, I've researched the definitions extensively. And yes, they can create whatever the heck they want, but they have to follow the law. Since they were mandated to create 9 policies, they tried to add one in that is not a policy, telling the homeowners it was required by the law along with the other policies.
As a result of my research, I have concluded that they created a Policy that is not a policy, but a rule. They are not "setting forth a process to be followed if someone does not follow a rule." They are specifying where one can park and whether you can cover your car, etc., which are rules. A policy would be what the process is when someone has broken the parking rule. But since Policies do not require approval by the Homeowners, and Rules do - they tried to bypass that requirement.

We are going to try to get the BOD to remove that policy, but since our BOD is devious and dictatorial, I doubt that will happen.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Edward

Typically BOD Rule & Regulations do not need owner approval. The BOD alone can make and/or change rules.

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