Changes/ammendments to decleration/bylaws

If the decleration and the by-laws are seperate documents, could they have seperate ammendment/change clauses? The bylaws state a 2/3 vote to change the "bylaws" and the decleration says these rights burdens etc. run with the land and can't be ammended for 15 years at which time they will be renewed at 5 year intervals if ot ammended. So can there be a vote to ammend/change the decleration?

Sorry Raymond, but you can have different voting requirements for the Bylaws if they are stated in each section. So the bylaws can be amended with a 2/3 vote. But at the moment, declaration can't be amended until 15 years have passed. However DonN on this board may have some different information with respect to this. I haven't been through all of his case law listings for Michigan, but you can take a look at:

http://swagman.typepad.com/poa_governance/2006/02/michigan_case_l.html#more

to see if any might apply to your area.

Joe

Charles,

Usually the ByLaws are written off of the Declarations, which should be called your Articles of Incorporation. They are the higher authority from the ByLaws and must be followed. Your ByLaws should be amended to not be in conflict with them.

Any documents can be amended if the proper number of votes can be obtained but your Covenants, Articles of Inc and ByLaws must all be the same as to not conflict with each other.

So with what I read above, What if our CCR's, and the bylaws have no parking restrictions except inoperable or recreational vehicles that must be parked out of view. Can they make rules to limit the type of vehicle that is parked in an owner's driveway or on the private street? This is not an issue of blocking views or safety, as we live on half acres with room to park 6 cars in our driveway.
Jill

The bylaws speak of things like voting board members in, terms and general governing provisions. They may be changed with a 2/3 vote. The decleration has provisions about house size, sheds, fences and swimming pools and says they can't be ammended for 15 years and run concurrently with the land etc. I think the board allowed some non-conforming things based on a vote to change the decleration which they thought they could change and now they are denying someone something that is specificly mentioned in the decleration. We are a new association and I think there have been a few misunderstandings

Could you give me some examples of expand on the restrictions??
Here is the decleration clause

This Declaration runs with the land and will be a burden on and benefit to the
Developer, its successors and assigns and any person with an interest in a Lot for
15 years from the date it is recorded. At that time, the restrictions will be
Automatically extended for 5 successive periods unless a majority of the
Current homeowners of lots sign and record an instrument changing them except
Section 11 thereof which shall not be amended.

and here is the bylaw ammendment clause

ARTICLE IX
AMENDMENTS
Section 1. Proposal. Amendments to these Bylaws may be proposed by the
Board of Directors of the Association acting upon the vote of the majority of the
Directors or may be proposed by 1/3 or more of the Members by instrument in writing
signed by them.

Section 2. Meeting. Upon any such amendment being proposed, a meeting for
consideration of the same shall be duly called in accordance with the provisions of these
Bylaws.

Section 3. Voting. These Bylaws may be amended by the Members at any
regular annual meeting or a special meeting called for such purpose by an affirmative
vote of not less than 66-2/3% of all Members. No consent of mortgagees shall be
required to amend these Bylaws unless such amendment would materially alter or change
the rights of such mortgagees, in which event the approval of 66-2/3% first mortgagees
shall be required with each mortgagee to have one vote for each mortgage held.

Charles, your Declaration states the Declaration is in effect for 15 years from date of recording and is automatically extended unless ...... It does not state state it can not be amended during this time (except for section 11). What you posted does not state what is required to amend the Declaration. In Colorado common interest ownership associations it requires 2/3 of ALL owners unless a lesser percentage is stated in the CC&Rs.

Your By-laws require 2/3 of ALL members to amend. That is an extremely high hurdle. Often it only requires 2/3 of the members voting at a duly called members meeting.

I thought the statement that the restrictions are in effect for 15 years at which time they can be ammended by a majority vote says that they can't be ammended for 15 years and we're about 4 years into it. That is what is required to ammend it. Am I making sense? Nowhere in the bylaws does it mention ammending the decleration. The only reference to the decleration in the bylaws is that the bod must enforce the decleration. In the decleration there are references to what size your house must be, what size and material your shed and fence must be and no above ground pools. The rest of the things like parking, decks, landscaping are in the rules and regulations. I thought they could change the rules and regulations but not the decleration items until the time (15 years) had passed.

They are in the process of ammending the decleration that previously states:

D. An owner may not build any outbuildins, above-ground swimmming pools or
garden walls on a Lot. Notwithstanding the foregoing, an Owner may install a
shed if (i)it is placed in the rear yard (il)is no more tan 10 feet wide, 10 feet
long and 12 feet high, ii) it matches the house's color, and the ACC
approves. in advance. a Plan for it.

E. An owner may install fencing if (i) It is limited to the rear yard (ii) it does not
exceed 4 feet in height, (iii) it is made of a maintenance free material (i.e
aluminum, pvc, vinyl coated chain link] , and (iv) the ACC approves, in
advance. a Plan for it.

F. Owner may not live in a trailer, motor home, mobile home. camper, tent
shack, garage, barn or outbuildmg on a Lot for any period of time. An Owner
must park trailers, motor homes, boats and campers in the garage.

to exclude vinyl coated chain link fencing, raise the height of fencing to 6 feet and increase the shed size to 12'x12'.

Several people now have 12x12 sheds and one person has a 6' fence. One person so far has been denied a vinyl coated chain link fence based on the decleration being ammended, which is not filed yet.

Like I said the association is only 1.5 years old so alot of people haven't done alot with their yards yet. We are a single family site condo I believe it is called and run as a non profit corporation if that helps. I'd like to know going forward with an association what they can and can't change. I do realize the rules and regulations not specifically mentioned in the decleration can be changed.

CharlesH9: It appears the restrictions as coming from the Declaration, points D.E.F., certainly are very clear on what is allowed in fence materials as well as shed-size restrictions.

Point E states only few materials as allowed, and IMO, is not practical. New materials are introduced to the market all the time, and for a declaration to deny amendment (ex. specific allowable materials) for 15 years in the future, is not allowing the association to stay abreast with the times. As the declaration reads now, it is short sighted.

If I was a resident who wanted to install fencing, I would certainly want to learn all the materials available, the most economical, and most maintenance free. The one statement which could be a defining factor for residents is "and the ACC approves in advance a Plan for it."

Now to your concern over changing the declaration, and filing amendment/s to the existing restrictions. Has the Board held a meeting to present the amendment/s and has there been a vote by the membership?

Yes you can have inground pools as long as the don't come above grade more than 1 foot and are in the rear yard only. You mucs have non=climable fencing around the pool that is at least 4' tall. The rules have how long you can store those big toys within view. We don't have any common area per say. Just the front entrance.