Different rules for different areas of the community

DavidG45 (Delaware)
Posts: 994

Posted:

Our community consists of a couple hundred single family homes, a couple hundred townhomes, and a couple hundred single family homes that are designated as a 55+ community.

We currently have a rule against fences for townhomes, while people in the 55+ and other single family homes can have fences.

There are other rules that we might want to consider that would only apply to the 55+ side and not the others, such as banning street parking and ot allowing homes to be rented.

Is this something that is acceptable - having different rules for different sets of homes?

AugustinD
Posts: 1,027

Posted:

Quote:

Posted By DavidG45 on 10/21/2022 4:38 PM
Our community consists of a couple hundred single family homes, a couple hundred townhomes, and a couple hundred single family homes that are designated as a 55+ community.

We currently have a rule against fences for townhomes, while people in the 55+ and other single family homes can have fences.

Is this a rule created by the board? Or is this a covenant that is part of the original (and still in force) Declaration?

LetA (Nevada)
Posts: 2,679

Posted:

You are going to have these different rules because in part town homes are far different than single family homes. Typically the town home owner does not own
what is beyond the threshold of the front or back door. 55Plus has an entirely different and protected set of rules and laws that protect older persons.

KerryL1 (California)
Posts: 14,550

Posted:

I don't recall, Davis, do your detached homes, the Legacy community have its own set of covenants?

Btw, you might want to check to see y if your state permits banning rentals.

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By AugustinD on 10/21/2022 4:49 PM

Posted By DavidG45 on 10/21/2022 4:38 PM
Our community consists of a couple hundred single family homes, a couple hundred townhomes, and a couple hundred single family homes that are designated as a 55+ community.

We currently have a rule against fences for townhomes, while people in the 55+ and other single family homes can have fences.

Is this a rule created by the board? Or is this a covenant that is part of the original (and still in force) Declaration?

The fence rule is in the covenants.

Parking is listed in the covenants as something the board can makes rules concerning.

Rentals would be a combination of rules and prospective changes to the covenants.

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By KerryL1 on 10/21/2022 6:21 PM
I don't recall, Davis, do your detached homes, the Legacy community have its own set of covenants?

Btw, you might want to check to see y if your state permits banning rentals.

Unfortunately we are all under the same governing documents.

I would assume we can ban rentals, because other 55+ communities in our area do and it’s a common topic of conversation. We might not even implement a total ban, but place restrictions on them in the 55+ lot that exceed restrictions in the rest of the community.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Yes, there can be different rules and there should be.

The fences are a perfect example. In communities I'm familiar with that have single family homes and attached townhomes, the townhome areas have exterior maintenance provided by the association. People can't cut the grass if there are fences. And as LetA noted, towehome owners typically don't own the yards beyond maybe a couple feet around their foundations - the yards are common area and fences mean encroachment.

Rentals *may* be different. The reason is that tenants can have a different impact in attached homes than they do in detached ones. On the other hand, I don't know that lenders differentiate when they consider the number of rentals in a community, so there is that. Research is needed, including a chat with a lawyer.

Courts in general look at whether or not any covenants, restrictions, rules, etc. are "reasonable". If there are obvious, quantifiable, negative consequences for something, then it's more likely that a rule would be reasonable.

AugustinD
Posts: 1,027

Posted:

Pertaining to a new-ish HOA, with no amendments to the covenants at present --

Quote:

Posted By DavidG45 on 10/21/2022 4:38 PM
Our community consists of a couple hundred single family homes, a couple hundred townhomes, and a couple hundred single family homes that are designated as a 55+ community.

We currently have a rule against fences for townhomes, while people in the 55+ and other single family homes can have fences.

There are other rules that we might want to consider that would only apply to the 55+ side and not the others, such as banning street parking and not allowing homes to be rented.

Is this something that is acceptable - having different rules for different sets of homes?

Quote:

Posted By DavidG45 on 10/21/2022 7:37 PM
The fence rule is in the covenants.

Parking is listed in the covenants as something the board can makes rules concerning.

Rentals would be a combination of rules and prospective changes to the covenants.

My take --

-- Anything in the original, un-amended covenants is something to which all agreed upon purchase. Even if an original covenant may seem unfair, all bought with eyes wide open (so say the courts, by my reading), and a court would enforce even a seemingly unfair, and even seemingly unreasonable, but original covenant . The fence covenant, which varies depending on the type of home and/or the home's location, is what it is. If an owner tried to challenge the fence covenant because it seems unfair to certain homes, a court would likely enforce the fence covenant.

-- The covenants permit the board to make rules about street parking. The only requirement is that the rules must be "reasonable." The Board should try to be "reasonable" with parking rules and then see if anyone challenges the rules. It's possible different parking rules for different sets of home is "reasonable."

-- Regarding applying different rental rules to different sections: I would have to see exactly what authority your HOA's Declaration gives the board, regarding rental restrictions, to comment on whether having different board-created rental rules for different parts of the HOA is something a court would enforce.

-- When it comes to Declaration (covenant) amendments, nationwide the courts expect the amendments to be reasonable. Why? The reason is to preclude a tyranny of the majority via say a 67+% owners' vote to amend that oppresses say some 10% of owners in a completely unfair, and so unreasonable, way. For example, suppose the covenants currently say no rentals are allowed. The required super majority of owners votes to amend this to permit AirBnBs in the 55+ section but no other section. (I remember the OP's HOA. Assume in this hypothetical that the non-legacy owners vote thusly out of spite.) Would an owner have a chance at prevailing in a lawsuit opposing the amendment? I think the owner would have a good chance of getting a court judgment that invalidates this amendment.

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By AugustinD on 10/22/2022 6:23 AM
Pertaining to a new-ish HOA, with no amendments to the covenants at present --

Posted By DavidG45 on 10/21/2022 4:38 PM
Our community consists of a couple hundred single family homes, a couple hundred townhomes, and a couple hundred single family homes that are designated as a 55+ community.

We currently have a rule against fences for townhomes, while people in the 55+ and other single family homes can have fences.

There are other rules that we might want to consider that would only apply to the 55+ side and not the others, such as banning street parking and not allowing homes to be rented.

Is this something that is acceptable - having different rules for different sets of homes?

Quote:

Posted By DavidG45 on 10/21/2022 7:37 PM
The fence rule is in the covenants.

Parking is listed in the covenants as something the board can makes rules concerning.

Rentals would be a combination of rules and prospective changes to the covenants.

My take --

-- Anything in the original, un-amended covenants is something to which all agreed upon purchase. Even if an original covenant may seem unfair, all bought with eyes wide open (so say the courts, by my reading), and a court would enforce even a seemingly unfair, and even seemingly unreasonable, but original covenant . The fence covenant, which varies depending on the type of home and/or the home's location, is what it is. If an owner tried to challenge the fence covenant because it seems unfair to certain homes, a court would likely enforce the fence covenant.

-- The covenants permit the board to make rules about street parking. The only requirement is that the rules must be "reasonable." The Board should try to be "reasonable" with parking rules and then see if anyone challenges the rules. It's possible different parking rules for different sets of home is "reasonable."

-- Regarding applying different rental rules to different sections: I would have to see exactly what authority your HOA's Declaration gives the board, regarding rental restrictions, to comment on whether having different board-created rental rules for different parts of the HOA is something a court would enforce.

-- When it comes to Declaration (covenant) amendments, nationwide the courts expect the amendments to be reasonable. Why? The reason is to preclude a tyranny of the majority via say a 67+% owners' vote to amend that oppresses say some 10% of owners in a completely unfair, and so unreasonable, way. For example, suppose the covenants currently say no rentals are allowed. The required super majority of owners votes to amend this to permit AirBnBs in the 55+ section but no other section. (I remember the OP's HOA. Assume in this hypothetical that the non-legacy owners vote thusly out of spite.) Would an owner have a chance at prevailing in a lawsuit opposing the amendment? I think the owner would have a good chance of getting a court judgment that invalidates this amendment.

Thanks,. To be clear, the idea is that there are rules that Legacy owners would find acceptable, such as banning parking on the street, but non-Legacy owners would not find acceptable. So the question is whether we could make rules and, if necessary, amendments, that would only apply to the portion of the community that is okay with it. That way everyone can be happy.

So it sounds as if it is okay to do something like this, so long as nobody is unfairly burdened and the rules/amendments can be defended as reasonable.

AugustinD
Posts: 1,027

Posted:

Quote:

Posted By DavidG45 on 10/22/2022 6:54 AM
To be clear, the idea is that there are rules that Legacy owners would find acceptable, such as banning parking on the street, but non-Legacy owners would not find acceptable. So the question is whether we could make rules and, if necessary, amendments, that would only apply to the portion of the community that is okay with it. That way everyone can be happy.

So it sounds as if it is okay to do something like this, so long as nobody is unfairly burdened and the rules/amendments can be defended as reasonable.

I agree.

If 100% approval of the rule or covenant amendment exists, I agree emphatically.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

David

Remember Rules & Regulations can be made by a BOD alone and can be reversed by a BOD. That said, a R&R cannot contradict a Covenant/Bylaw.