Confusing issues about Bylaws vs CC&R’s

This is a fair interpretation of what CC&Rs are for a HOA. Add in that the courts see CC&Rs as contractual terms, enforceable just as the terms of any contract are enforceable.

Huh?

You do understand that bylaws are one governing document and the CC&Rs are another, correct?

Please understand that Texas statute B.O. 22 requires the corporation to have bylaws and lists much of what the bylaws must address.

Please understand that covenants (CC&Rs) are about the use of land/property and paying for upkeep of common area.

Bylaws should never be amended such that they include requirements that conflict with the CC&Rs. If such a bylaw amendment is passed, then per the law, the bylaw amendment is null and void. If you do not understand why, ask.

If your bylaws have a section that allows the board to pass amendments to the bylaws, then I would get rid of this section.

Ask more questions.

From TPC 209.0041:

(i) A bylaw may not be amended to conflict with the declaration [of CC&Rs].

Do you understand?

Understood, thank you for the response....

Remember these documents get changed by member vote not board. You need board involvement for approval to spend money on the project etc. However the actual change is entire members. It may even require a special meeting to pass. There are ways around this. Highly suggest removing that part so can go door to door. Otherwise your stuck with meeting.

Damn--sorry about my stray "back yard" sentence, Kenneth.

Sure, our HOA is composed of about 450 properties in RURAL Central Texas, 40 miles North of Austin, We are a SINGLE family HOA, no businesses allowed, no livestock unless on 5 acres of contig property. Lots range from 1.75 to 24 acres. We own our own central water company which is separate from the HOA under a non-profit. We have 11 miles of roads we maintain. We have had an unwritten rule against metal-sided buildings for the last 23+ years until some folks moved in and are challenging it now. Our CC&Rs were made by the developer as the buildout happened by SECTIONS, hence he changed each section a little to have each one unique! Hence the 400+ pages, lots of repetition but the basics are there.
I am not of the boar, ran a non-profit for 11 years that I owned and not going to do that again, I feel better being a voice of those who do not speak up in public so I am known for asking a lot of questions...
Basically what I am trying to do is lay out the regulations in the CC&Rs since they are the first in the pecking order under the state etc. To be specific what is and is not allowed. I understand this may be contrary to what the majority of CC&Rs may say but from looking at hundreds of documents they are all over the place. Yes, Texas says we need Bylaws, I have no problem with that, it may be short and it might add some clarity to the CC&R document but I feel we need a good foundation CC&Rs to start with. I may be wrong in this approach, and if so I will change it.

Here is a sample paragraph of one area:

3.01 GENERAL RESTRICTIONS FOR SUBDIVISION OF REAL PROPERTY
a) All real property known as “Plots” or “lots” or “Plats” within the development may NOT be subdivided into “Additional” parcels, i.e. whereas one (1) parcel of 3 acres SHALL not be divided into THREE (1) acre parcels or any fraction of the whole to create more than one lot/parcel or a 20-acre parcel SHALL not be subdivided into plots of any lesser combination of the whole;
b) A property owner(Grantor)MAY replat his or her property to allow the reduction of the size, granting the adjoining property owner (Grantee) a larger parcel for a nominal fee that is agreed upon between said property owners and as long as the Grantor’s property is not less than 2 acres after the reduction;
c) All re-plats must be presented to the POA board, to the County commissioners, and to the local Water Company providing service in the area for approval with the appropriate paperwork;
d) Commons areas SHALL NOT be incorporated into private parcels. All work must be done by abiding by State State laws.

The idea of a Rules document is new to us, great idea....

Thanks for the info....

Nothing wrong with wanting to make the documents easier to read (and hopefully understand) - in fact, there's been a major shift in cutting down the legalese in many documents. However, you have to remember these are LEGAL documents - you are not an attorney and you know one or two words here or there can change the meaning of many things. So forget about this being a do-it-yourself project.

As John noted, homeowners will still need to vote to approve the changes, so to ensure people bother to even vote, they'll need to be convinced that updating the documents is necessary, can make the association more efficient in its operations, and possibly prevent lawsuits. If you have a ton of apathy (like most HOAs), you have to get past that - and accept there will be some lot owners who won't care about any of this, no matter what you say. The challenge will be to get enough homeowners to vote - for example, you say you have 450 properties. If the documents require 75% of homeowners to approve changes (1 vote per lot), 338 homeowners need to be persuaded. Everyone will have slightly different reasons to agree or disagree to this, so it'll be important to find out what people even think about updating the documents. You realize they need updating, but others may not understand that (especially if they've never sat down to read them in detail - and most haven't).

Take a look at older conversations on this website about document revision to get ideas. Good luck and be patient - you have lots of miles to go before you sleep.

We looked at having an attorney rewrite our Covenants and Bylaws. I recall it would have cost about $4K. We decided to pass on doing it. We did have PDF copy so I converted that to MSWord Easier to read and search on. I also noted any changes that were made by noting them in bold showing the old and thr new wording. I did put in bold type the following:
THE BELOW DOCUMENTS WERE COPIED FROM THE ORIGINAL XXXXXX PDF FORMAT AND SHOULD BE USED FOR INFORMATIONAL PURPOSES ONLY
THE DECLARANT AND REFERENCES TO SUCH ARE NO LONGER APPLICABLE AS OF 01/2015

I retyped them with the following disclaimer:

This document is an accurate representation of the original document recorded in the Register’s Office of xxx County, [State]. Book ### pages xxx-xxx and reformatted for the purpose of publication to the members of [name] Homeowners Association, INC.

Where items were omitted, it specified what those items were.
For example:

[a list of every property owner at the time, including the lot number, their name/s and , the associated record book and page number showing ownership is located here in the recorded document]

and

[Here are signatures and notary stamps of the individuals executing the document]

In the case of amendments to the documents, I have:

[here, there are multiple pages of notarized signatures of the owners of the lots
(63 of 74 total lots) who approved the above action. Those pages specify:
IN WITNESS WHEREOF the party hereunder set his hand and seal the (multiple dates) Day of May, 2009]

Sorry. I meant editing a post I wrote. Thanks

Rules of thumb:

* CC&Rs describe what you own and what you may do, may not do, and must do as an owner. It's what creates the HOA or condominium property as a legal entity.

* Bylaws deal with governance of the HOA, which is very likely a corporation. They will describe the composition of the board, officer positions, duties, meeting requirements, etc.

* CC&Rs are higher on the legal "food chain" than bylaws. This means if there is any contradiction between them, what's in the CC&Rs overrides what's in the bylaws.

* State law overrides both CC&Rs and bylaws if there is a contradiction.

But you have to be careful, because any of these things can defer to the others. (Example: in my state, open board meetings are the default, but the law defers to communities' bylaws for this. So if the bylaws say that board meetings are held without notice, then that community's board meetings may be closed.)

Regarding "plain English": legal documents are written in legalese, which can be hard to parse. Many lawyers use boilerplate, which they modify to address the specifics of individual communities. This allows them to make sure that all necessary parts are included, that nothing extraneous is introduced, and that the entire document is logically consistent. And some lawyers are less skilled writers than others - using boilerplate helps with that.

Boards deal with the confusing nature of legal agreements by creating a community handbook that contains the important parts of the CC&Rs and bylaws and that is written in plain English. This is given to homeowners and is usually on the community website.

But when board members are making decisions, they always always always go back to the original legalese text to see what it says. This is the only solid foundation if there is ever a dispute. We've had disagreements around here about the meaning of a particular bit of legalese that boiled down to punctuation. This is why trying to re-write CC&Rs in plain English may not be an achievable goal - and would be the job of an attorney in any case.