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What’s the word I’m looking for?

Started by BrettH3 • 16 replies • 592 views

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BrettH3 (South Carolina)
Posts: 47
Posted:
The county allows 7 ft fences but our CCRs only allow 4-ft.. What’s the term called, something like “ stronger rule prevails “;that allows HOAs to forbid parking in the streets, etc. The attorney will bill me $250 if I ask...
NpS (Pennsylvania)
Posts: 4,216
Posted:
HOA rules can be more restrictive but not less restrictive.
Sikubali jukumu. Read all posts at your own risk.
BenA2 (Texas)
Posts: 1,273
Posted:
I'm not sure if this is what you are looking for but hierarchy of laws or documents applies. County laws are higher on the hierarchy than CC&Rs so they prevail if there is a conflict.

Many people oversimplify this by saying county law would always prevail which is not true. Both rules/laws apply unless they contradict each other. In your case, the limit for fences is 4 ft. because it complies with both county law and the CC&Rs. If the limit under the CC&Rs was 8 ft. it would conflict with county law and the county law would prevail.
SheliaH (Indiana)
Posts: 6,964
Posted:
And some statutes may say the HOA documents take priority if they're stricter than the statute.

If you don't want to pay an attorney for an opinion (Or search for one who may charge less), why not submit your request and see what happens? you're going to have to come up with a good reason why you feel this should be granted despite moving into a community where you knew what the limitations were.....
If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
AugustinD
Posts: 3,698
Posted:
I know what BenA2 is saying but when it comes to a 'conflict of laws' situation, the meaning of "contradict" and "conflict" here confuses many people. Word-wise, and using commonly accepted meanings of "conflict" and "contradict," many laypeople would understandably IMO say that a county law requiring fences to be under seven feet either "conflicts with" or even "contradicts" a HOA covenant requiring fences under four feet. Subsequently the laypeople will sometimes argue (here at hoatalk and elsewhere) that, by the hierarchy of laws, the county law controls, and the covenant is not lawful. But of course, this is incorrect. The reason it is incorrect has to do with contract law, rules on "conflict of laws" (a huge subject), maybe basic math word problem skills, and more. Which I think is way way over the heads of 99% of folks.

I think perhaps NpS's post above is the response that should rule here.

1.5 cents
TimB4 (Tennessee)
Posts: 21,059
Posted:
Brett,

In your example, the word is "controls"

see:

https://www.law.cornell.edu/wex/controlling_law
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Quote:
Posted By NpS on 04/16/2021 6:15 AM
HOA rules can be more restrictive but not less restrictive.

I agree because owners agreed to such when they became a member of the association.
MaxB4
Posts: 3,513
Posted:
Actually, the proper way to look at this is,

!) HOA Rules and Regulation cannot be more restrictive than the CCRs from with they are derived from.

2) CCRs can be more restrictive than local city codes, for instance a city may allow for parking on a public street, but somehow a HOA can restrict such activity.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Quote:
Posted By MaxB4 on 04/16/2021 11:06 AM
Actually, the proper way to look at this is,

!) HOA Rules and Regulation cannot be more restrictive than the CCRs from with they are derived from.

2) CCRs can be more restrictive than local city codes, for instance a city may allow for parking on a public street, but somehow a HOA can restrict such activity.

While I agree with Max, #2 can be tricky as non-owners can park on that street as they did not agree to the Covenants.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Wanted to add that the HOA's attorney is NOT the member's attorney. That means the HOA can charge a member money to ask the Attorney money. So if the OP was going to ask the HOA's attorney a question needs to understand what side that attorney is on. Plus that it is an expense to the HOA. Best to get your own attorney to ask and not the HOA's.
Former HOA President
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Quote:
Posted By MelissaP1 on 04/16/2021 1:24 PM
Wanted to add that the HOA's attorney is NOT the member's attorney. That means the HOA can charge a member money to ask the Attorney money. So if the OP was going to ask the HOA's attorney a question needs to understand what side that attorney is on. Plus that it is an expense to the HOA. Best to get your own attorney to ask and not the HOA's.

I would expect an honorable association's attorney (maybe an oxymoron) to turn away anybody that mentions the HOA and is not on the BOD or for that matter a BOD Member not authorized by the BOD to talk to them.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
It depends on how or who the OP is asking. If they are going direct to the attorney they must tell them their relationship with the HOA. Thus turning them down.

However, if the OP is asking their HOA to go to their attorney to get legal advice, then that advice costs the HOA money for legal consultation. Which if this is how a HOA handles inquiries of this nature, then they can pass their legal expense onto the member.
Former HOA President
BenA2 (Texas)
Posts: 1,273
Posted:
Quote:
Posted By AugustinD on 04/16/2021 7:42 AM
I know what BenA2 is saying but when it comes to a 'conflict of laws' situation, the meaning of "contradict" and "conflict" here confuses many people. Word-wise, and using commonly accepted meanings of "conflict" and "contradict," many laypeople would understandably IMO say that a county law requiring fences to be under seven feet either "conflicts with" or even "contradicts" a HOA covenant requiring fences under four feet. Subsequently the laypeople will sometimes argue (here at hoatalk and elsewhere) that, by the hierarchy of laws, the county law controls, and the covenant is not lawful. But of course, this is incorrect. The reason it is incorrect has to do with contract law, rules on "conflict of laws" (a huge subject), maybe basic math word problem skills, and more. Which I think is way way over the heads of 99% of folks.

I think perhaps NpS's post above is the response that should rule here.

1.5 cents

I don't think we do anyone any favors by dumbing down an explanation of the law. "HOA rules can be more restrictive but not less restrictive" may usually be true but not always. For example, in Texas, the state statute guarantees the right of a homeowner to fly the U.S. flag on a pole up to 20 feet high. In this case, the HOA can allow taller flag poles but cannot require shorter ones. In other words, they can be less restrictive, not more.
AugustinD
Posts: 3,698
Posted:
BenA2, you are right, and I was wrong. NpS's version only applies if there is no conflict. For the archives, I think the short version should be something like:

"If the HOA covenant does not conflict with either federal statutes, the state's statutes, county regulations or municipal regulations, then the courts say that the HOA covenant can be more restrictive."

The forum is stuck with asking folks to read carefully and have good reasoning skills.

Thank you for setting the record straight.
NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By AugustinD on 04/17/2021 6:29 AM
For the archives, I think the short version should be something like:

"If the HOA covenant does not conflict with either federal statutes, the state's statutes, county regulations or municipal regulations, then the courts say that the HOA covenant can be more restrictive."


Augie

Your proposed version does not take the date of enactment vs the date of HOA formation into consideration. Many state statutes identify what's retroactive, what's deferential to HOA declaration, etc. Many local ordinances are vague on what's grandfathered and what isn't.
Sikubali jukumu. Read all posts at your own risk.
PaulaN2 (California)
Posts: 5
Posted:
I'm not sure if this helps:

Example from CA Senate Bill No. 754:
"In the event of a conflict between this article and the provisions of the Nonprofit Mutual Benefit Corporation Law (Part 3 (commencing with Section 7110) of Division 2 of Title 1 of the Corporations Code) relating to elections, the provisions of this article shall PREVAIL."

Synonyms to Prevail:
abound, prove, overrule, predominate, preponderate, prevalent
KellyM3 (North Carolina)
Posts: 2,239
Posted:
There's no question that the poster is limited to installing at 4-foot high fence on his property.

If the county law limited fence height to 3-feet, that's when the "stronger law" would apply and supercede the HOA covenant (because the HOA rule would then be violating government law and thus be obsolete).

It doesn't apply in reverse, if you will.

And yes, paying $250 to ask that question to an attorney is a bit of an investment.

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