Board Member not following the CCR

A HOA Board cannot vote themselves to change a CC&R.

They can choose to not enforce a particular CC&R.

Are you on the board, Jennifer? How can one board member violate a CC&R section? Boards take action & vote, not individual board members.

What is the content of the CC&R that was violated?

They can't. The problem then becomes: what can you do about it?

If you're lucky, your governing docs will allow individual homeowners to enforce the CC&Rs through individual lawsuits. Your neighbor paints his garage the wrong color, you sue him. Obviously this will discourage going after piddly stuff due to the cost involved.

Also if you're lucky, your state may specify some sort of dispute resolution system. This makes more sense for the less urgent stuff and keeps HOA issues from clogging up the courts.

If you don't have either of these options, then you're going to be left with doing things the hard way: fix it, live with it, or move.

If beige garage doors bug the cookies out of you, then you can try to send a demand letter to the board/ACC, noting that they're violating the CC&Rs and that doing so amounts to an unlawful amendment.

When they ignore you, you'll be left with trying to replace the board. You'll need plenty of neighbors who see things your way, who are willing to become board members themselves, and who will vote accordingly. Lots of time and effort required. (This is the point at which most people decide they can live with beige garage doors.)

what is the alleged violation? Is the board member violating it personally at their house? Or are they allowing another member to violate it?

Please cite if you can, the section of the CCR's that pertains to this.

I think I misunderstood the question, JenB. Are you saying that the board member is doing something to their property that violates the CC&Rs?

I thought that the CC&R’s have to followed. To deviate from them, do they not need to be re-written or can the board override the CC&R?

Have you checked to see if the ACC did approve the beige garage door? Is that restriction in the rules and regs or is it in an ACC rules document? Was it recently changed without you realizing they are now allowing colors?

You probably need to do some research to find out if the board member(s) is actually violating the CC&Rs. Also, is the board member the only one violating the color rules or are they not enforcing the rule on all members?

The only time "variance" might be appropriate to use in a HOA/COA context is if an owner has a situation where his/her lot must, by any reasonable standard (or possibly building codes), have xyz to be functional as a home but the CC&Rs disallow xyz.

Too many boards abuse the word "variance," thinking they are all-powerful and not beholden to the CCRs. They think they can grant a variance any time they feel like it. So-called "variances" are warranted only in the most extreme circumstances of necessity, with physical constraints being a real problem.

Another way to put this: If a HOA Board grants a variance to Owner Bennet to allow xyz, and denies xyz to owner Darcy, the HOA Board needs to have a reason for this seeming "selective enforcement" that will hold up in court. Said reason being that Owner Bennet's lot will not, say, properly drain of water without allowing xyz. A real physical problem exists that justifies Bennet having xyz but not Darcy.

I believe "variance" has far more applicability in the world of city and county land use departments.

One of the reasons I asked whether or not the ACC approved the color is that ACC rules can change, at least in Florida, without approval of the membership. Our ACC rules change every couple of years. The last change we added an approved list of colors. Prior to that it just said "harmonious" colors. One ACC board might say harmonious meant only original colors. The next ACC board might say anything is harmonious. Only the HOA board needs to vote in new rules.

I can't believe that minutes are not required of an ACC approval - most of the time there's a formal application that has to be filled out.

So we're back to my original question - did the board member get approval for the beige garage door? If not, has the board enforced violations against other homes who painted a garage door beige without ACC approval? You need to know that before you can decide whether or not the board member is not following the rules.

And try as you might, not every list of ACC rules is complete and covers every situation. Variances or exceptions can and do happen all the time. In our ACC rules, every tree you remove must be replaced by a 6 ft or taller tree. But our community is over 20 years old and many of the houses have old landscape that has way too many trees in front. So there are many times when someone requests to have a tree removed with no replacement and it is granted.

I thought BOD was to uphold Declarations. I just finished serving two years on our BOD and was enforcing parking. Panel Vans with roof racks considered commercial and not allowed to park overnight in our community. Now the President wants to rewrite this and decided to not enforce this rule. They BOD have decided to relax enforcement, have a moratorium etc. I think they should be enforcing the Declaration until which time the community votes on it.