Best Practice for Homeowner Requests for Changes to Rules and Regs (Not CCR)

RobertN10,

-- Is this a condo (and so subject to FS 718)? Or is it a non-condo HOA (subject to FS 720)?

-- Does the Declarant still control this community?

Else a few observations:

-- Only the board can set the rules. The owners cannot set the rules. In other words, owner votes to set rules are null and void.

-- I disagree that the Board has to obtain consensus. Statutes and your governing documents put the legal responsibility for the activities of the HOA/COA in the hands of the board. If the Board is taking direction from the owners, then the Board puts itself at great risk legally.

-- In Florida, owners have the right to comment either before, after or during a Board meeting. Tell me if this is a condo or non-condo HOA, and I will tell you details.

-- Your Board can certainly take input from owners. Though much of the time, I'd say the Board's sole response to any input should be, "Thank for your input," with the Board taking no further steps.

-- Do you think that the board can please all the owners all of the time? Especially as owners change?

The remarks below pertain exclusively to Florida non-condo HOAs, and so non-Condo HOAs subject to FS 720.

I believe the history of FS 720 demonstrates the intent:

2015 -- Florida legislature added "rules and regulations" to FS 720's definition of "governing documents."

2018 -- Florida legislature added 720.306 (1) (e), which inter alia stated "An amendment to a governing document is effective when recorded in the public records of the county in which the community is located." Around 2018, this generated commentary like the following:

http://www.campbellpropertymanagement.com/blog/2018/09/24/think-rules-and-regulations-do-not-need-to-be-recorded-think-again-recent-legislative-changes-affecting-homeowners-associations/

https://www.floridacondohoalawblog.com/2018/08/28/do-my-hoas-rules-have-to-be-recorded/

2021 -- Florida legislature removes "rules and regulations" from FS 720's definition of "governing documents"

My take on this is that the Florida legislature did not want to burden boards with recording the rules and regs every time the board changed the rules and regs. I think the legislature recognized that the 2015 change and the 2018 change caused a clash on one level that was not appropriate.

That the Rules and Regulations are no longer a "governing document" as FS 720 defines "governing documents" is irrelevant. The Rules and Regulations derive their power from the Declaration. As long as said rules and regulations do not go outside the covenants; do not conflict with the covenants; and are "reasonable" then they are legally controlling. The Rules and Regulations are not a mere "guideline." The rules and regs have the force of law.

Owners request things all the time. You can’t say yes to everyone, and taking the time to research every single suggestion or request is time volunteers don’t have.

My standard response to owner suggestions is: put together a proposal and bring it to the next board meeting. The proposal should explain why you think this is necessary or desirable, how it would be done (or enforced in the case of rules) and what you are willing to do to see this through to completion.

Most people won’t do this, which shows you the extent to which they actually care about the issue. If they do, great! You’ve got an invested volunteer that you can now ask to do research or surveys or other legwork in pursuit of their pet project.

As far as input from owners goes, everyone needs to keep in mind that the board has a duty to act in the best interests of the association while homeowners can act in their own self-interest. "Best interests" will include things like taking the long view, compliance with the CC&Rs and state laws, and making sure that any proposed change doesn't provide an unfair advantage or benefit to a small group of homeowners at the expense of the rest.

As Augustin noted, boards that simply do what the homeowners want without further consideration are failing to do their jobs.

Our Board permits Owners to submit agenda items to the monthly open board meetings. There's required form that asks for the reason for the agenda item, cost (if any), research needed?, and a little more. The Board gets about 6 owner agenda items a year, I'd say, but I don't recall a suggested rule change.

But whether the Board or an owner suggests a rule change, IF the Board approves the proposal, in CA, the proposed rule change must go out to owners for a 28-day comment period. The Board then discusses the proposed change at the next open board meeting and approves, does not approve it, or decides it needs further research. Rules aren't required to be recorded in CA.

This sounds similar to WA, and perhaps Michael isn't aware of this requirement.

With Steve, if there are several rules the board has in mind a quick survey makes sense with summaries of the several rules.

Nice to hear from Gwen. IMO, so long as the assn. has the power to enforce the rules with fines or other cures, it doesn't seem to me that their effects are weakened.

use free google forms tool to create a survey.
https://www.google.com/forms/about/

generate a QR code from this website https://www.qrcodechimp.com/qr-code-generator-for-googleForms

post it on facebook community group, HOA website and you can even make outdoor signs at community entrance
people just scan with their phone ane fill out the survey.

I think every HOA should conduct a survey every 5 years ago and see what their residents think.

While you might think so, instead we have a very involved group, at least initially, that has formed to meet regularly (so far), has been very willing to prepare their "business case" and present. While the Board listened to their initial case, they then also talked about future topics. That caused me time to pause as individually, a single request is perhaps simple to address. And then invites lots of how about this or that.... so referencing our CCR, Rules and Regs, and FS 720, I came to the conclusion we do not have a good process for handling this. First, to ensure that what is proposed is even worth consideration - we can't react to every breeze that blows. And further, constantly churning changes becomes a organizational mess and can be expensive to constantly update the rules and regs. So concluded we need a process, but my initial legwork with 1) discussion with our property management company, 2) discussion with association attorney, 3) discussion with friends who are CM's, 4) discussion of friends in other HOA's and 5) using my friendly Google search.... all came to the net result of no one has seen such or operate under any such method. So broadening my net to see what others may have experienced.

Thanks for your comments. I am aware of survey's have done several over the years on various topics prior to Board member. Such surveys though lack controls, anyone with link, homeowner, friend, foe or otherwise, can then vote. Ballot box stuffing easy as well. Who knows if Tom Smith actually voted or not? Additionally, Facebook is not an effective means, IMHO, to get complete coverage of the community. Many due not have Facebook, others do not want to follow the group page as some of the drama and antics that goes on. And Facebook page again can easily have non-homeowners, including renters.

I am looking for any existing procedures that HOA's may already have, save the development from scratch or minimally help to ensure we consider what we may have not thought about.

You are touching on exactly why I would like to have a procedure, changes can take up too much time, time that could be spent on other activities, as well as cost and possibly confusion by the homeowners with a constant barrage of change to the rules.

First, people need to realize that CCRs, while sometimes a contract between a HOA and a homeowners, they are mostly generic, one size fits all restrictions that don't nor shouldn't apply to all community.

To be legally enforceable, a rule MUST be stated in the CCRs with the word "SHALL", not may or maybe. Other rules put into a rule and regulations handbooks should be common sense rules that normal people should already know to abide by, but they are not one's that if legally challenged won't pass the smell test.

I believe every HOA should have a website, no matter how big or small, that is accessible and easy to maintain and update, where even a caveman could do it. I don't care if it is password protected as you are not trying to hide national secrets. It should be easily accessible by its members. IMHO, if you have to hide it behind password protected pages, you potentially have something to hide.

Have a committee put toward common sense rules that are not spelled out in your CCRs and then do a survey among your owners. Survey Monkey and site such as those will track where the IP address is coming from. If you suspect some one cheating using multiple IP addresses, realize that person has too much time on their hand and ignore. I no longer live in a HOA because I don't want or feel I need to be beholding to 2 5pages of rules.

I must have made the agenda item point very unclear. While owners in my HOA COULD suggest a rule change if they wish on the appropriate agenda form, NONE have in several years.

When our HOA was about 6 years old, there still were some developer rules that didn't make sense. The Board appointed an ad hoc Rules Committee, which studied the entire "Community Handbook" and recommended eliminating, revising and adding a rules. We're twin high rise towers so actually have a lot of rules. This approach was very successful. I recall we eliminated a dozen unenforceable or stupid rules and added several IF we had access to simple surveys back then, we probably would have used one too.

Here are two rules we dumped: residents may not use the stairwells. This probably was to keep it free for EMTs if needed. Another was no glass containers in the (outdoor) BBQ area that has a couple of large built-in grills. In both cases the rules were completely unenforceable.

We added a rule against wind chimes on balconies (which were driving some folks nuts)

This reminds me, CAI has a Board Members Toolkit or some such title that includes a very good section on rules. I recall one tip that was useful for us: Explain the purpose of proposed rules: An original rule is that no floor mats, plants or any other items may be located in the hallway outside an Owner's condo unit. Some felt the rule was unreasonable and wanted to "personalize" their entrance (we have a max of 5 units on any given floor). but that rule, in fact, is a requirement of the fire marshall so that nothing can cause a trip hazard or slow down EMTs.

Max wrote: "To be legally enforceable, a rule MUST be stated in the CCRs with the word "SHALL",[sic] not may or maybe [sic?]." But "rules" are not in CC&Rs; they're in a separate document. I don't want any new readers thinking that covenants and rules are one and the same as this is a common mistake.

Also, I hate to break this to Kerry, but there are a number of HOA's that do not have a separate set of Rules outside of the CCRs.

When the homeowner Board took control the first thing we did was send out a letter to inform the community that we would now require our PMC to be more vigilant in their enforcement. No surprise, but several homes (mostly rentals) were not looking good after being ignored by the developer PMC. Also, one of the first things we did was have an independent committee review and revise the rules. There were some minor changes, mostly loosening some restrictions as well, including adding a small group of "pre-approved" ARB items, items which were not a change to the exterior but were more maintenance items -- just to help stream line the ARB process for really silly stuff.

Those "new" rules were approved last July. That was after at least 3 meetings with agenda to review each change, then posting on the community Facebook page of the changes, a distribution of a complete set of the new revised rules, a public hearing for comment (which there was no feedback) and then a meeting following that for Board approval. My hunch is people are now getting violations and paying attention and feeling a bit irritated, so easier to change the rules than follow them.

Thanks for your response. Our Board has done likewise as yours did, we took about 6 months for the update to the rules that the developer handed off.

We are now in the "office process", or trying to define. A couple of questions:

--1. How do you gather the rules that the Board sends to membership on their feedback? Do you accept anything that a homeowner suggests or is there some process by which you require they provide such feedback?

--2. For membership meeting, what % of the membership do you usually have? For items that can change the overall style of the community, how do you conclude that there is sufficient interest in the community to accept the change?

--3. How many rules have you had proposed since adopting your "official process"? How many of those rules have been approved by the Board?

I'm in Florida, HOA governed by FS 720. We just updated all our documents in 2021. Here's what they say about our separate rules document.

From our Declaration that empowers us to have a separate rules document -

Definitions:

1.24 “Governing Documents” means this Master Declaration; the Plats; the Articles; the Bylaws; the ARB Guidelines; and the Rules and Regulations. The ARB Guidelines and the Rules and Regulations need not (but may) be recorded in the County Public Records in order to be valid.

1.46 “Rules and Regulations” or “Rules” means the rules, regulations and policies governing or regulating the Community that may be promulgated by the Board from time to time

Common Areas, Easements, Community Systems

4.2.5 The right of the Master Association to adopt, at any time and from time to time, and enforce Rules and Regulations governing the use of the Common Areas, Lots and Parcels and all facilities at any time situated thereon, including the right to fine Members as elsewhere provided herein. Any rule and/or regulation so adopted by the Master Association shall apply until rescinded or modified as if originally set forth at length in this Master Declaration.

Then it goes on to define some of the rules of the association.

From the bylaws document:

7. RULES AND REGULATIONS; USE RESTRICTIONS. The Board may, from time to time, adopt and amend Rules and Regulations governing the Community subject to any limits contained in the Master Declaration. Written notice of any meeting at which Rules and Regulations that regulate the use, transfer, maintenance, appearance of Parcels may be adopted, amended, or revoked must be mailed, delivered, or electronically transmitted (to the extent permitted by law) to the Members and posted conspicuously in the Community or broadcast on closed-circuit television not less than fourteen (14) days before the meeting

We also have a separte Rules ad Regulations document that gives the rules for the amenities and common areas. The separate ARB document has the rules for architectural changes.

When we rewrote the documents, we didn't do huge changes to any of the rules and regs. The ARB document got updated because 20 years after the community was completed we needed paint colors and better landscaping standards. For the ARB document, the ARB members suggested changes based on the requests they had seen from homeowners wanting to make updates to their homes.

All the documents were sent out for the required 14-day review period before they were adopted by the board. Our docs do not require a vote of membership for bylaws, rules and regs and ARB. We also had a comment period at the board meeting. No one commented.

However, we recently have had controversy because one home (both sides) in the duplex section painted their garage door a color instead of white. This is allowed and was approved by the ARB. Suddenly we have homeowners coming out of the woodwork saying the ARB document is wrong and it is ruining the neighborhood. Where were these people when we sent it out for review?

Too much change is not a great thing, so do you really want to be changing your documents each time a form is filled out? And almost always through self-interest? Maybe hold all the suggestions and have a committee formed every two years to look at them.

Just curious...what did you change / modify regarding amateur radio? I am a ham, and of course, HOAs tend to be hated by hams due to antenna restrictions. A few years ago (before I was on the board), I wanted to put a wire antenna up, and it was approved by the HOA! I was a happy camper.

Would be curious to hear what your amateur radio antenna guidelines are.

Thanks for the summary.

Speaking generally, CICs are not empowered to require approval for antennas. See the Over Air Reception Devices Rule: https://www.fcc.gov/media/over-air-reception-devices-rule

Q: What types of restrictions are prohibited?

A: The rule prohibits restrictions that impair a person's ability to install, maintain, or use an antenna covered by the rule. The rule applies to state or local laws or regulations, including zoning, land-use or building regulations, private covenants, homeowners' association rules, condominium or cooperative association restrictions, lease restrictions, or similar restrictions on property within the exclusive use or control of the antenna user where the user has an ownership or leasehold interest in the property. A restriction impairs if it: (1) unreasonably delays or prevents use of; (2) unreasonably increases the cost of; or (3) precludes a person from receiving or transmitting an acceptable quality signal from an antenna covered under the rule.
The rule does not prohibit legitimate safety restrictions or restrictions designed to preserve designated or eligible historic or prehistoric properties, provided the restriction is no more burdensome than necessary to accomplish the safety or preservation purpose.

Regards,
Steve

Seems reasonable. Thanks!