Does CC&Rs take precedence over the by-laws?

Started by CharlesW1 • 21 replies • 3919 views

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CharlesW1 (Georgia)
Posts: 826

Posted:

I know I have asked this question before and currently there is another thread asking the very same question.

Last night at our monthly board meeting, The PM was in disagreement with me about what took precedence over the other.

Too my knowledge, state statues takes precedence over the governing documents.My question would be,Does the CC&Rs over rule the bylaws and R&Rs?

Our bylaw(attached) says that any person found in violation of the governing documents has 15 days to comply before being assessed a fine. Our CC&Rs(attached) states 10 days are permitted, before the violators can be fined or suspend the right to vote. Which are we to implement when following procedure?

Our PM says because there isn’t a covenant in the CC&R for fining/suspending rights is why we must follow the covenant pertaining to the fining procedure, which is only in our by-laws.

I can provide additional information and quote what our CC&Rs states as well as the by-laws in necessary. Just let me know.

Please clarify, just to be certain. I’ll be sure to inform the other board members either way, although I’m pretty confident that he is wrong! HOPEFULLY!

Thank you all in advance.
Chuck W.

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Charles E. Wafer Jr.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Charles,

You have 2 questions needing an answer. #1 is that your State Statutes are number 1 in priority .Covenants and Restrictions are precedent over the ByLaws and those are over the Rules and Regs.

Now, after looking at your 2 attachments, I think that you misinterpreted the words of #5.2 and #3.21

#3.21 addresses fines or suspension and reads that a fine or suspension will be imposed after a 15 day notice, etc.

#5.2 addresses "owners responsibilities" and states that an owner has 10 days to request a hearing and respond to a repair notice.

I hope that this helps. You are right that any differences in the wording and allowances from Covenants, Bylaws and Rules and regs, must agree and not be in conflict but the covs take precedence.

CharlesW1 (Georgia)
Posts: 826

Posted:

DonnaS,

I guess I do not understand what you are saying. I’ve read and re-read and I’m still interpreting it the same way as before. PLS explain to me where exactly I’ve misinterpret what was written. …..OOPS 

I certainly HATE it when I’m wrong especially when I was as adamant concerning which was which regarding the 10 vs. 15 notifications.

I would appreciate it if you would clarify my interpretation so that I can apologize for my stubbornness.

Thank you
Chuck W.

Charles E. Wafer Jr.

GeraldT4
Posts: 1,022

Posted:

DonnaS & Chuck -

I assume 5.2 is the CC&R and 3.21 is the Bylaw?

#5.2 'owner's responsibilities' doesn't say anything about requesting a hearing or responding, it states 'The Owner shall have ten (10) days after receipt of such notice within which to complete such maintenance, repair or replacement, or, in the event that such maintenance, repair or replacement is not capable of completion within a ten-day period, to commence such work which shall be completed within a reasonable time.'

#3.21 speaks to requesting a hearing or responding.

#3.21 'fining or suspension procedure' states "1)The nature of the violation, the fine or suspension to be imposed and the date, not less than (15) days from the date of the notice, that the fine or suspension will take affect. 2)That the violator may, within (10) days from the date of the notice, request a hearing regarding the fine or suspension imposed;"

The owner does not NECESSARILY have 15 days to comply, rather the owner TECHNICALLY has 10 days to comply OR within a reasonable time thereafter. The fine cannot be imposed less than (15) days from the date of notice. The owner has 10 days from date of the notice to request a hearing.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Charles,
It is not "stuborness" but Tenacity. Let's see if I can do this easier.

5.2 Owners responsibility.-- OWNER SHALL HAVE TEN (10)DAYS AFTER RECEIPT OF SUCH NOTICEWITHIN WHICH TO COMPLETE SUCH MAINTENANCE, REPAIR OR REPLACEMENT or, in the event that such maintenance, repair or replacement is not capable of completion within a ten-day period, to commence such work which shall be completed within a reasonable time.
If any homeowner does not comply with the provisions hereof, the Association may provide any such maintenance, repair or replacement and all costs thereof shall be assessed against the Owner and the Lot as a specific assessment.(Owner has 10 days to to complete repair, maint, etc AFTER notice or can be fined)

3.21 Fining or Suspension procedure.

1) The nature of the violation, THE FINE OR SUSPENSION TO BE IMPOSED AND THE DATE, NOT LESS THAN FIFTEEN (15)DAYS FROM THE DATE OF THE NOTICE, THAT THE FINE OR SUSPENSION WILL TAKE EFFECT. (15 days from notice, fining may begin)

2) That the VIOLATOR MAY, WITHIN TEN (10)DAYS FROM THE DATE OF THE NOTICE, REQUEST A HEARING REGARDING THE FINE OR SUSPENSIONIMPOSED. (10 days from notice, a hearing may be requested)

5) That all rights to have the fine or suspension reconsidered are waived if a hearing is not requested within ten (10) days of the date of the notice.
(Assoc. allows 10 days to request a hearing. If none is filed, then it is waived or no hearing is allowed after 10 days)

b) If a hearing is requested, it shall be held before the board in executive session, and the violator shall be given a reasonable opportunity to be heard. The minutes of the meeting shall contain a written statement of the results of the hearing. No fine or suspension shall be imposed prior to the date that is five (5) days after the date of the hearing. ( fining or suspension cannot begin until 5 days after the hearing)

DonnaS (Tennessee)
Posts: 5,671

Posted:

Cbuck,

The most important question that I forgot to ask you.
5.2 is from what?, The covenants or ByLaws

3.21 is from what? The covenants or the Bylaws

Those are definitely two seperate items up there. One(5.2) is owner responsibility and for repair and the other (3.21) is Fining.

CharlesW1 (Georgia)
Posts: 826

Posted:

DonnaS,

3.21- IS in our by-laws, were as the 5.2 is a covenant in our CCR&Es.
I may have very misinterpreted what was written and for that I WILL apologize to the BOD and our PM.

I understand now, that I was WRONG! So I know for the future what is the order of precedence? Does the by-laws supersede the CC&Rs? Please, explain the BOLD print in 5.2 of the CC&Rs for me to interpret/comprehend correctly.

I’m certain you all may have stated so in your replies however it wasn’t clearly stated a YES or a NO.

Thanks again
Chuck W.

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Charles E. Wafer Jr.

CharlesW1 (Georgia)
Posts: 826

Posted:

GeraldT4,

You posted, “The owner does not NECESSARILY have 15 days to comply, rather the owner TECHNICALLY has 10 days to comply OR within a reasonable time thereafter. The fine cannot be imposed less than (15) days from the date of notice. The owner has 10 days from date of the notice to request a hearing.”

That is exactly how I read it. Is that right? I would think so. I don’t believe I’m misinterpretation anything, according to your interpretation.

Basically the member in violation receives a violation notice, at which time they have 10 days to comply, on the 11th day (compliance committee verifies those in compliance/still in violation) those who have not complied lose all voting privileges and use of the amenities as well as lose the ability to request a hearing. On the 16th day, the BOD/PM can issue a fine or hire a service to rectify the violation and charge the HO for such services performed.

Is that correct?

Thanks as always
Chuck W.

Charles E. Wafer Jr.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Chuck,

Order of precedence;

FEDERAL LAWS' (such as FCC, FHA,AMD, etc)

STATE STATUTES (HOA, environmental, etc.)

COUNTY AND CITY ORDINANCES AND CODES

ASSOCIATION RESTRICTIVE COVENANTS (cc&r's)

ARTICLES OF INC. (registration with the State & assoc. has a copy)

BYLAWS

RULES AND RESTRICTIONS.

5.2) IS A 10 DAY TIME LIMIT FOR WHICH AN OWNER HAS TO CORRECT ANY VIOLATIONS TO WHICH THEY HAVE HAD NOTICE(written I hope). If they do not repair, replace the noticed item, then the BOD can begin the fining process which is outlined in 3.21 That is where the 15 day item shows up.

CharlesW1 (Georgia)
Posts: 826

Posted:

DonnaS,

That would mean that we were both right?! I had said “that those found in violation are notified (violation letter) and given 10 days to comply and fined on the 11th day”. “The PM says they have 15 days to comply before being fined”. The CC does a follow up inspection on the 11th day to verify those who have complied and those who haven’t.

That inspection is emailed to the PM who then mails (certified, return receipt) a fine, within the next couple of days.

You are saying those found in violation have 10 days to comply, but not less than 15 days to be fined. Correct?

Thanks again. Don’t mean to sound so thick concerning this issue, although I want to be certain the correct procedure before making an *** of myself.

Chuck W.

Charles E. Wafer Jr.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Chuck,
We're almost there.!!

OWNER HAS** 10 **DAYS TO COMPLY TO NOTICE (repair, replace , comply)

FINING TO BEGIN**15** DAYS AFTER NOTICE (if no repairs, replacement etc.)

OR

OWNER HAS ***10*** DAYS FROM ORIGINAL NOTICE TO REQUEST A HEARING

So there is actually 5 day gap between the original notice ending and the beginning of fining.

GeraldT4
Posts: 1,022

Posted:

DonnaS & Chuck - Correct, concur. : )

DonnaS (Tennessee)
Posts: 5,671

Posted:

WHEW!!

CharlesW1 (Georgia)
Posts: 826

Posted:

DonnaS

LOL that’s what you think!

I thought that is what I had said? Apparently NOT, sorry!

Hypothetically, let’s say a community inspection is performed by the PM on the 8th of February. A violation letter is mailed to those HO dated as the 10th.

In the violation letter it states that no privileges/ or fines will be issue if found to have complied within 10 days of the date on this notice. Otherwise you be accessed a fine, voting privileges and use of the amenities will be revoked on the 11th day.

Is this correct, now?

Chuck W.

Charles E. Wafer Jr.

CharlesW1 (Georgia)
Posts: 826

Posted:

Quote:

Posted By DonnaS on 02/14/2008 7:46 AM

WHEW!!

I second that! SORRY

Thank you all, especially, you both!

Chuck W.

Charles E. Wafer Jr.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Chuck,
That's what we're here for and what we do. Anytime my Friend.

GeraldT4
Posts: 1,022

Posted:

CharlesW1 - Revocation of voting privileges and use of facilities is fining. Fining is to begin on the 15th day after day of notice. Not revoked on the 11th day. : )

DonnaS (Tennessee)
Posts: 5,671

Posted:

OOPS!!!,
This came in while I was writting my "whew"

Violation letter is "RECEIVED" is the key word here. Must be notified or recieved if mailed. Say--recieved on 10th. Soonest fining could begin is 25th.
That's 15 days AFTER NOTIFICATION. unless they request a hearing, then ya gotta wait for results of hearing.

GeraldT4
Posts: 1,022

Posted:

Now I think Charles is all square and we can all go "WHEW". : ) : )

CharlesW1 (Georgia)
Posts: 826

Posted:

Quote:

Posted By GeraldT4 on 02/14/2008 8:10 AM
Now I think Charles is all square and we can all go "WHEW". : ) : )

GeraldT4,

OH, I wasn't unaware of that. Makes sense though.

So, voting privileges and use of the amenities can be revoked and fining can only begin 15th days from the date on the violation notice.

So essentially the CC (compliance committee) could still do their follow-up inspect the BOD or the PM couldn't revoke or fine until after 15 days from date on the violation notice.

I think I got it NOW, thanks for the clarification. That is certainly better than being completely wrong. Hopefully I’ll be able to explain it clear enough to the other board member as well as the PM.

Chuck W.

Charles E. Wafer Jr.

DonnaS (Tennessee)
Posts: 5,671

Posted:

You've got it now my Friend. Glad that Gerald was here to remind us of the revocation of priveledges too. Thanks Gerald!

TracyT (Maryland)
Posts: 228

Posted:

P.S. Don't forget what else Donna said:

"Violation letter is "RECEIVED" is the key word here. Must be notified or recieved if mailed."

The violation is going through the mail system and you have to give people to a chance to RECEIVE the notice. The date the owners signs for the letter starts the clock ticking.

Tracy

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