DECLARATION TRUMPS RULES (? ? ?)

Hey, I liked this answer from "AugustinD" on 9/8:

"You are correct that Board-created rules and guidelines cannot be more limiting than the covenants. You can start by writing a letter stating your understanding is the covenants are contractual terms, and that you understand Board-created rules and guidelines cannot be more limiting than the covenants." ("HOA overstepping CCR's")

(Thumbs-up to THAT, AugustinD!!)

Driveway is your responsibility, at least that is how it is in ours. Our docs say the driveway is to be kept in good repair by the owner. And since your documents say nothing about the driveway, then it’s not common and it’s your responsibility.

Did you look at § 66-27-302 (2) and (4)? These state:

Except as provided by the declaration:
...
(2) If any chute, flue, duct, wire, conduit, bearing wall, bearing column, or any other fixture lies partially within and partially outside the designated boundaries of a unit, any portion of the chute, flue, duct, wire, conduit, bearing wall, bearing column, or other fixture serving only that unit is a limited common element allocated solely to that unit, and any portion of the chute, flue, duct, wire, conduit, bearing wall, bearing column, or other fixture serving more than one (1) unit or any portion of the common elements is a part of the common elements;
...

(4) Any shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, patios, and all exterior doors and windows or other fixtures designed to serve a single unit, but located outside the unit's boundaries, are limited common elements allocated exclusively to that unit.

A little in the vein of SheilaJ1's comment and as CathyA3 seems to be querying, the million dollar question may be: Does each driveway serve exclusively one unit?

Hey SheilaJ1, CathyA3, and AugustinD,
(Please forgive this lengthy reply!!!)

I dearly appreciate your comments. Y’all are AWESOME!!! Thanks. And, yes, AugustinD, I did do that and what you highlighted is why I go around in circles with THIS!! '(
(Also, I should have clarified that your 9/8 answer was to someone else.)

We have a single driveway. BUT . . . . HOA lawn maintenance uses it, going back and forth on it, when mowing the grass on either side. So, in our minds, that blows up “exclusive.” Except I’m sure HOA will argue ‘need to access easements yada, yada,' for that purpose. What we think is “exclusive” is our GATED courtyard.

And, yes, CathyA3, you smartly picked up on something that bothers me too, what you bolded, and then wrote: “That says to me that the exceptions need to be spelled out somewhere in the Declaration, or that the Declaration allows the association to punt this into the rules (which would be unusual).”

That is EXACTLY what they did!! They PUNTED!!! No one will tell me when “The Rules” were put in place. There is no year on the front. The Declaration was submitted to the state in 2004. My unit was built much later. You can’t tell me that between the time the first unit was built, the Declaration had not put in a driveway by then! The Developer would have had control of this property until some units were sold. This is MADDENDING---and vague on purpose!!!

This snippet is maybe kind of a bummer, as well, if we go with what Sheila wrote, that it's our responsibility:

“Homeowners emphasize the court's finding that the restrictive covenants are "vague" and "very subjective" in their enforcement. The Court went on to conclude, however, that the covenants are enforceable "as long as the homeowner is on notice of the Board's general authority and the Board then follows its own appropriate procedures in enforcing the Restrictive Covenants." As stated above, as long as the actions of the ARC are reasonable and taken in good faith, the restrictive covenants are enforceable. See Westermann, 1998 WL 289342, at *3.”

https://scholar.google.com/scholar_case?case=731522327677378721&q=chaudhuri&hl=en&as_sdt=4,43
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As an aside, when we got the first ‘warning’ letter, there was absolutely no mention of filling out an ARC request. Then, the successive letter states we now have to fill out the ARC request, even though we are arguing that we are not modifying /adding on - - - we’re doing maintenance, (if we’re forced to do this). We wouldn’t ask their permission to replace / repair, anymore than we would ask permission to pressure wash it.

And look at this, guys, from the Bylaws:
"Specifically included in the foregoing general powers of the Board of Directors are the following powers and duties, which are listed by way of enumeration and not by limitation:
To adopt rules and regulations, with written notice thereof to all Unit Owners, governing the administration, management, operation and use of the Condominium property and the Common Elements, and to amend such rules and regulations from time to time."

It only gives them power to address the "Common Elements," and I believe the driveway might fall under "Limited Common Elements" (when, again, "driveway" is non-existent). (Now what is the in-depth definition of "Condominium property"?? Is it only the Unit? Plus the courtyard? Or is driveway added in? And is that what Sheila means when stating if it's silent, it's our responsibility?)

And to keep piling on to the layers is this gobbledygook, from the CCR's:

"MAINTENANCE AND ALTERATIONS OF COMMON ELEMENTS AND LIMITED COMMON ELEMENTS.
(a) The maintenance, operation and repair of the Common Elements and Limited Common Elements shall be the responsibility and the expense of the Association, except as follows:

(1) Each Unit Owner shall have the responsibility of maintaining and repairing all air conditioning and heating equipment serving its Unit, whether such equipment is located inside or outside the boundaries of the Unit;
(2) All windows and screens forming a part of perimeter wall of a Unit shall be cleaned and washed, and any damage thereto repaired, at the expense of the Unit Owner of that Unit;
(3) Each Unit Owner shall have the responsibility of maintaining, in a manner consistent with the rules and regulations of the Association, all planting, landscaping, and/or gardening areas designated by the Board of Directors as Limited Common Elements attributable to the Unit of that Unit Owner, and
(4) Each Unit Owner shall have the responsibility of maintaining and repairing those Limited Common Elements allocated to its Unit by the Association, including, without limitation, those items set forth in Section 4(c)(1) of this Declaration; except that Limited Common Elements located in foundation slabs, or in attic space, shall be repaired by the Association, and the cost of such assessed against the Unit Owner(s) to whom those Limited Common Elements are assigned."

(I don't know how to bold on here but the "Section 4)c)(1)" is what I posted earlier, where we asked what rules were violated and were only given that section. Although vacuous, I think they may have us at section (4)
"ALLOCATED TO ITS UNIT BY THE ASSOCIATION . . . " But bizarrely, the letters have never said what rule was violated. This was only stated in an email to us, from someone, after we asked!!! So much for democracy!!! But I guess one should know you sign your rights away when joining an HOA---we never realized but, boy, do we ever NOW!!!)

One ray of hope: Our driveway is not the only damaged one. There are others. But we are being singled out.

"Selective Enforcement" here we come, for, as Max suggested, this may be one for the court(s) to decide.
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Blessings, y’all, and, again, I thank you for your time!!

(P.S. Forgive my ignorance, Sheila, but what is an “OP”?)

Ah, got it. Thanks!!!! : D

Cathy:

Here are my replies:
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"Could you describe the buildings in your community? Are they:

1. Detached single family homes with their own garages and driveways (ie., neighbors' driveways won't touch each other). If detached, who owns the land under the building, the homeowner or the association (ie. is the land common area)? (NO)

2. Attached townhome style buildings (you may have a neighbor on either side of you but no one above or below you). If townhome style, can two neighbors' driveways physically touch each other (ie, a single piece of concrete, maybe with an expansion joint along the boundary between them)? (YES to FIRST) (NO to SECOND)

3. Attached multi-story condo style buildings (you will have neighbors above and/or below you). If this style, can two neighbors' driveways physically touch each other (ie, a single piece of concrete)? (NO)

If the second or third groups describe your buildings, it makes sense to have the association handle the maintenance of the driveways. If your buildings are in the first group, maintenance responsibility will probably depend on ownership of the land underneath."
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Not only that, Cathy, but the crazy "Rules" state we are to keep our garage doors closed at all times, unless working in them. Reason being: "Uniformity." Well, if that's the case, and they crave that, then the HOA should WANT to micromanage the state of all the driveways here, so they CAN fix at all times to look 'uniform.' But they are too cheap.
(Our prop. mgr. is constantly going on vacation, too . . . . hmmmmmm . . .)
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I ABSOLUTELY AGREE:

"Yes, this is confusing stuff. Failing to mention driveways anywhere in the CC&Rs is odd since they're important. It will make a difference if they're common elements or limited common elements (LCEs) and what the CC&Rs say about who maintains the LCEs."
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HAAAAaaaa . . . THUMBS UP FOR THIS (AND, SADLY, YES TO LAST) :

"Or... you could just play stupid and humbly ask the board to clarify. Say you're very confused about how to read the CC&Rs - and of course you want to do the right thing in the future!!! - so ask them to cite the sections of the CC&Rs that they say you're violating and see what they say. Or if you want to spend some money, you could ask an attorney for their opinion."
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AS FOR THIS: . . . (PLS EXCUSE CAPS)

"The problem with trying to prove selective enforcement is that you can't tell from observation what's going on. Typically enforcement actions are confidential, which means you won't know who else has received violation letters unless the recipients talk. It will look exactly the same to you if the board is ignoring other violations, or if they've sent letters and the owners are not complying and are getting fined up the wazoo."

. . . MY ANSWER IS THAT WE GOT THE FIRST LETTER SOME TIME AGO. WE SAW ABSOLUTELY NO ACTIVITY IN THE SUBDIVISION, WHEREBY OTHER DAMAGED DRIVEWAYS WERE PERFORMING WORK. IT IS NOW THE FALL, AND I CAN STILL WALK OUT THIS DOOR AND TAKE PICS OF THESE SAME UNCHANGED DRIVEWAYS, THAT LOOKED LIKE THIS THIS SPRING---AND LOOK LIKE DAMAGE HAS GONE ON FOR YEARS.

YES, I UNDERSTAND ABOUT THE CONFIDENTIALITY PART, BUT IN THIS CASE, ACTION(S) SPEAKS LOUDER THAN LETTERS. ALSO, WE BOUGHT THIS UNIT WITH THE DAMAGED DRIVEWAY. IT'S BEEN LIKE THIS FOR YEARS PRIOR, AS WELL. THIS HOA HAD NO INTENTION OF ENFORCING ANYTHING ON PREVIOUS OWNERS. CAN'T GET INTO HERE WHY HOA IS SINGLING US OUT BUT BESIDES THAT, YOU WOULD NOT BELIEVE IT---THE PETTINESS AND CHILDISHNESS. THESE PEOPLE ARE ABSOLUTELY INSANE ON THIS BOARD. SAME (OLDER GENERATION . . . EARLY ONSET DEMENTIA???) ONES, YEAR AFTER YEAR. NO "NEW BLOOD." SAD.

THANK YOU!!!! : D

I've seen communities where garage doors had to remain closed unless you were coming and going. :-) I can kinda see the point since the insides of many people's garages aren't very pretty, and open garages could cause safety issues (break-ins, kids and pets getting into stuff they shouldn't, etc.). By the by, a neighbor of mine had his garage ransacked by a rabid raccoon. I would not have wanted to clean up that mess, especially things with rabid raccoon spit on them.

I guess the bottom line is going to be how much time, money and energy do you want to put into fighting this?

In your place I'd probably play stupid first and see how much information I can get out of the board.

After that, it would become mostly a money decision. Would it be cheaper to just fix up the danged driveway - especially if delaying the repairs will cause larger, more expensive repairs in the future - or do I want to run the risk of the HOA being right and possibly adding additional expenses (eg. fines) on top of what I already have to spend? Am I willing to pay a lawyer on top of that (and *still* have to pay to fix the driveway)? Am I willing to put up with the stress of fighting with the HOA, or is my peace of mind worth something?

In my case, I'd choose the least expensive option that would resolve the issue. I don't let my emotions make financial decisions (this can be a real risk in HOAs/COAs where people can get so angry about something that they end up doing things that are not in their best financial interests). Yes, I'd be annoyed if I bought a home with a beaten up driveway and then got a violation letter - "oh, NOW this is an issue?" But my annoyance would not change how I approached the problem.

But others may see things differently.

One thing to look into: HOAs often have to provide an estoppel letter when a home changes hands, and these letters should verify that there are no outstanding violations on the home. If such a letter was provided and it said that there were no violations, you may have something you can fight with. (In your place I'd still repair the driveway, although I'd probably send the board a copy of the estoppel letter with NO VIOLATIONS prominently highlighted.)

It’s a lot of wording but doesn’t appear to say anything about driveways. Your on your own. I don’t see any selective enforcement. Unless you can provide clear issues instead of just book length replies, I see nothing the HOA is responsible for relating to driveways.

Excellent, succinct post by "GenoS" (HOA Forum, 04/07/2019 8:00 AM) (My emphasis):

"The defense of selective enforcement applies TO THE SAME TYPE OF VIOLATION. Example, I get a fine for letting my dog run off-leash. The neighbor down the block does the exact same thing AND IS NOT FINED. THAT'S SELECTIVE ENFORCEMENT.

Another example: I get fined for having a junk car in my front yard up on blocks with no wheels. My neighbor left his garbage cans out for 3 days after trash collection day AND DOES NOT GET FINED. THAT'S NOT SELECTIVE ENFORCEMENT. The violations being enforced HAVE TO BE THE SAME."

https://www.hoatalk.com/Forum/tabid/55/forumid/1/postid/261727/view/topic/Default.aspx
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Sheila, I can prove, via pictures, that approximately 15-20 driveways have 'issues' here. These driveways are going belly up. Yet WE are being singled out, period. We are being mandated to 'fix.' No one else is showing any activity of being made to either resurface or replace. Therefore, IF there is a rule about the driveways, and IF driveways have to live up to some mythical "community standard," as the letters state---and OTHERS are not made to make THEIRS 'pretty'---then this is one-sided, biased treatment AGAINST us.

I perceive your writing "book length replies" that you meant it negatively towards me, If I misinterpreted, I pre-apologize. But I think the opposite is true. I think it WAS dismissive. I had already pre-apologized for the lengthy post, earlier. So if you wrote it unkindly, please, do ignore any posts I may submit in the future and please do not respond to any of my queries. I would appreciate it. I'm just here to from the wisdom of others, who, hopefully, follow "The Golden Rule."

(HOAtalk.com Rule: "This is a POSITIVE place for community association leaders TO SHARE IDEAS AND LEARN." While I would feel more comfortable with a change in language ["for involved community association PARTICIPANTS"] I'd like to think that the spirit of this rule applies here, nonetheless.)

If no other owner's vehicle uses this driveway on a regular basis, whereas you, as owner of the unit, regularly use the driveway , then I think your driveway falls under § 66-27-302 (2) and (4) and is yours to maintain.

Regarding the selective enforcement: If you fight the violation, then perhaps what is more likely than not to happen is that your neighbors will have to repair their driveways at their own expense.

I think your best recourse is to go ahead and fix the driveway. Then run for the board with a group of like-minded people.

The problem I see with this whole thing and citing Tennessee Horizontal Law is when the law was enacted and when your association was created and documents recorded. Let's say your association came into existence in 2000 and the law was enacted in 2008. How many HOA's, one, knew the law existed or was updated, and those that did know, took any action to update their documents.

I believe you're not on the board, so the question arises, does the association have all its records from the very beginning? Are there amendments that were not approved or never recorded. The other issue is that governing documents are generally of the boilerplate variety, meaning they could have been originally written for a HOA three counties over and, looking good, were implemented for your association. You mention that the word "driveway" never shows up in your declaration, maybe it's because in the HOA it was originally written for, there were no driveways.

Governing documents are not that difficult to read or understand, you just have to ensure you have all the relevant pieces. I've read hundreds of governing docs for a variety of HOA's and unless they have been recently restated, they're crap, not worth the paper they were typed on. Some of these go back to the 1970's. Boards actually think that their docs are the laws, not realizing that language and laws have been updated.

Lisa

The problem is many will pass by book length posts, myself for one, as boring thus you could be losing some that might give advice.

AugustinD,

This sounds good in theory, "[R]un for the board with a group of like-minded people," but, sadly, in the reality we face here, that's not the case. Y'all just have no idea what we're up against. . . . 'Stepford Wife' syndrome.

Your sentiment---while great and hopeful and we appreciate your commiseration and love the sound of it---is for PROGRESSIVE states (Florida, Arizona, etc., who care about the rights of condo owners . . NOT here!!). Our state "law" is just crap. To the State of Tennessee: "Seriously?? This is the BEST you can do?? Can you say: "vast and multi-year CAI-lobbying industry"???)

Your well-meaning sentence could also be made into a feel-good Hollywood movie, where the downtrodden rise up and open up a can of "Whup-A" on "The Baddies" . . . but, again, it's not here in this state, and it's not here in this community. No one even wants to hear us talk about our trouble . . . they are scared; they run at the sight of us - - - head(s) in the sand. ('Well, it ain't happening to us!! Therefore, don't wanna make waves!!')

As to this, yes, absolutely, we had the same thought:

"You need to make sure you have all amendments to the Declaration . . ."
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On a related side note to the CAI comment above, I LOVE this HOATalk TITLE, from the past:

"You KNOW things are bad when CAI supports a HO against his HOA!!"

(Simultaneously shaking-head-sad and funny.)

https://www.hoatalk.com/Forum/tabid/55/forumid/1/postid/59944/view/topic/Default.aspx
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Thanks much, AugustinD!!

Thanks, Kerry, for your time in weighing in. I appreciate your thoughts.

As to this: " "Selective enforcement" is a different matters and IS hard to prove due to confidentiality requirements." . . . .

. . . I told someone else on the forum this (but you many not have seen it):

"I can prove, via pictures, that approximately 15-20 driveways have 'issues' here. These driveways are going belly up. Yet WE are being singled out, period. We are being mandated to 'fix.' No one else is showing any activity of being made to either resurface or replace. Therefore, IF there is a rule about the driveways, and IF driveways have to live up to some mythical "community standard," as the letters state---and OTHERS are not made to make THEIRS 'pretty'---then this is one-sided, biased treatment AGAINST us."
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(If I could BOLD this, I would > > > "No one else is showing any activity of being made to either resurface or replace," < < < THIS is the PROOF that there's Selective Enforcement going on here.

IF the Board likes you, they look the other way. I know this because I've talked to some of the people who have problem driveways.

I've asked them: "Did you get any letters about your driveway?"

"No."

And their driveways have been damaged for years---as was ours, prior to purchasing. We got our letters earlier this year and if these others are being hassled as well, there is no signs of activity. This either means they are paying the fines (NOT!!) or they are not getting letters (YES!!).

And it's those "competent" HOA attorneys who allow those same boards to remian in power.

Was this the advice from your sidekick Augie that Lisa should follow?

LisaB32, from experience, my suggestion is what any competent HOA attorney would advise as the quickest path to fixing a board that may not be doing its job. If changing the board make-up is not possible, then the options are:

-- one to several years of litigation, with no guarantee of the outcome, except that the attorneys will make a mint.

-- move

-- put up with the incompetence

Sorry, still learning this forum software...

Attorneys... allow.

Where in the U.S. do the attorneys have the independent power to do anything about bad boards?

If I am not mistaken, wasn't your last Board president, an attorney, who you wewre the best of buds.

It's time you stop with your snarky ass remarks about me!

(My bad . . . it's "Ethnic-ist" to assume one has to be of German descent to know its CUSSWORDS!)!

haaaaaa

I do hope this was all worth it when the dust settles.

I remember reading about a woman who was unable to retire because she'd spent all of her money on fighting her HOA - can't remember what the lawsuit was about or whether it was win-lose-or-draw when she ran out of money. I remind myself of this whenever I start saying things like "it's the principle of the thing". Principles shouldn't be reserved for those who can afford them, but life can work out that way sometimes.

(Dang it . . . I can't figure this board OUT!! Smiley was for what you wrote, still on the ethnic cussing!! Did I need to copy your reply, first?? And that's how it gets in a box??)

TEST:
"Of course we know them! (When my siblings and I were kids, my parents would speak German so that we wouldn't know what they were saying. You'd be amazed at how fast little kids can pick up a new language, and how fast they learn the bad words. You don't really know a language until you can cuss fluently and know all of the rude gestures...)"


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As for "dust settles . . ." post, I thank you for your kind support. That meant a lot.

Blessings to you and yours.

oh, gosh!! I see what you mean, Cathy on first sentence!! (Eyes crossed emot!!) ( < < and EMOTS!!)

And AAaaaaaa-MEN to the "Edit button" (fer sure!!!) ;D

THANKS!!!

(Wish we were NEIGHBORS!!!) (And not just because of HOA in common.)

And a ban feature :-)

You are definitely not the person or persons that need the ban hammer used on them. :-)