Board Amending Rules

This has probably come up before. The Owners in my HOA took over control of the Board from the Declarant in late 2020. The Declarant was not actively monitoring the community and allowed a lot of modifications that should have gone through an approval process to be added without getting an approval. They even approved a few things that violated the rules.

The new Board just wants to abolish the rules going forward, especially one rule that is currently prohibiting a Board Member from making a modification to his house.

I don't think they are considering the consequences of just abolishing the rule. For example, the rule prohibits signs. Without the rule, an Owner can set up all kinds of signs in his yard - advertising, promotional, "Vote Yes/No for the Casino", etc.

Since these are rules and not in the Declaration, can the Board just make the change without any notice to the Owners? This is in Virginia.

BarbaraR14, yes this comes up a lot. You are on the right track. I do not exactly disagree with what SheliaH posted. Here's my take:

-- A HOA has covenants, as recorded in the Declaration and on public notice with the County Clerk. The courts say covenants are contractual terms, binding each owner to all other owners and the HOA corporation as a whole. The Declaration is the highest in the hierarchy of what is called a "HOA's Governing Documents." The Governing Documents typically are the Declaration, the Articles of Incorporation, the Bylaws and the Rules and Regulations.

-- That there is a hierarchy is important. It means that a Rule and Regulation cannot contradict anything in the Declaration and be enforceable.

-- The Declaration usually states that the Board has the right to create "reasonable rules" required to implement the Declaration's covenants. These "reasonable rules" must have a basis in the Declaration, and the rules must not conflict with what is in the Declaration.

-- "Conflict" is something that many laypeople do not understand until they have seen some examples. I suggest checking in here if you think there's a conflict between a covenant and rule but are not sure.

-- You speak of the Developer approving violations of "the rules." To get intelligent feedback here, I expect you will have to clarify whether the Developer authorized violations of the covenants or authorized something like variations on the rules.

-- Notice is another topic. I would be checking the Virginia HOA yada statute to see if the statute says anything about notice. I would also be checking whether the HOA's governing documents say anything about notice of new rules. Lacking more guidance in Va statutes in the governing documents, the courts expect the Board to be "reasonable and fair."

Generally, rules that are not part of the Covenants, Conditions and Restrictions (CC&Rs) are used for common areas and amenities. If it is not in the CC&Rs then it would not normally be enforceable on an owner's private property. It's possible they want to eliminate the rules because they are not enforceable.

This is true for the most part for single family home associations. Condos are a different animal and there could be exceptions based on what your CC&Rs say and state law.

Barbara
BOD's can make rules as long as they do not Override Covenants and Bylaws.
Our Covenants define type signs allowed and their sizes so a BOD Rules cannot
go out side the Covenants like allow larger signs.

If Covenants do not mention signs, a BOD could have a field day allowing
anything. Also a BOD can override any prior BOD rules.