Board Power to make rules

Our Covenants state that "The installation of garage doors on all garage openings is required. All residences with garages must have automatic garage door openers unless otherwise approved by the Association." There is nothing in the covenants about keeping your garage closed.

At some point, years ago, our Board put in our rules and regulations that "All garage doors must be closed except for ingress and egress."

I am questioning whether the Board can make a rule regarding garage doors that is not expressly stated in our Covenants. We are an HOA of detached homes. Our driveways are not part of common areas. And there is no way to interpret the covenants to mean the doors must be down at all times.

Doesn't the Association need to amend the covenants in order enforce the rule of keeping garage doors closed at all times? Our bylaws state that:

"The Board shall have the exclusive righ to adopt and publish rules governing the use of the common elements and the personal conduct of the Members and guests thereon."

and

"The Board shall possess and may exercise for the Association all powers, duties and authority vested in or delegated to the Association not reserved to the membership by other provisions of these by-laws or the declaration."

Thanks for your input in advance!

Gerald,
We had an issue with garage doors being open all day long. Now, if the garages were holding cars and some things, it probably never would have come up as an issue. What everyone had to look at was total chaios inside the garages with boxes and mounds and mounds of junk and toys and God only knows what else was in there.

There were 2 points brought up. First of all, it encouraged theft. The residents have all kinds of contractors, landscape people and vendors coming and going in and out. All of a sudden, a few epensive bikes were missing and a purse disapeared from someones unlocked car. And then the nice neat look of the neighborhood got lost.

So the Board passed a Closed door policy for garages. It was a rule, not an amendment so the Board wrote it. There were no condo cops watching, just basically it told the residents to keep them closed unless they were using the garage or were working in the yard. We really do not come down on anyone unless the doors remain open much of the day. It has not been an issue and when someone is not following the rule, we just send a reminder letter. Nothing more.

SC -

A deeper look at your covenants and/or by-laws may be in order. It is quite common that Boards are given the power to establish rules and regulations for the community (not just for the common areas). For example, Architectural Review Committees may be established in the covenants but the rules they or the Board establish may not be specified. Yet the covenants usually provide for such a body to create rules.

Your second quote is rather classically non-descript in that it seems open to interpretation.

SC - Your covenants as you sighted do not address the rule of closure or non-closure of the garage doors. The cc&r's mention garage doors but nothing is being changed on the method of closure. My opinion is the rule is valid. I believe you are making the incorrect interpretation. As for the rule of keeping the garage doors closed, I agree with it wholeheartedly but just think the Board needs to be very very careful on making judgments based upon situational sightings and complaints. Before fining for a rule violation the Board should dot their i's and cross their t's.

SC: IMO, this is another situation for use of common sense. It is common for the Board of an Association to require that garage doors be kept closed as a matter of practice. Obviously, for ingress and egress it needs to be open, and also if one is doing yardwork and is going in and out for tools or other materials, it is common for the door to remain open while the work is being done.

I think the Board is within its power with this rule. This is to try to prevent one from leaving the garage door open all day/night especially if their garage is 'full of junk', as some are. I personally would not want to look across the street at my neighbor's junk all day without a valid reason for him having to leave it open.

Its a rule initiated for showing courtesy to one's neighbor. If you are working on a project which would require you to keep your garage door open, just contact the Board to inform them and get their OK. I'm sure that would not be a problem. Its those who abuse the rule who they will come down on.

very interesting. I would have to dive more into the CC&R's to know for sure, but there is one big thing that make this an interesting case.

"The Board shall have the exclusive righ to adopt and publish rules governing the use of the common elements and the personal conduct of the Members and guests thereon."

If this is the ONLY area where the right to create rules is written, I would side with the OP: the board has NO right to create a rule governing my property, only use of the common areas. the rules the board can adopt are limited to the common elements and the conduct of members/guests ON those common elements.

i would be looking at the documents to see if the board has the right to create OTHER rules, or just those governing the common areas.

Again . . . do open garage door affect the health, safety or welfare of the neighborhood? I think it's an aesthetic issue.

You can't legislate manners or consideration. The Board can encourage people to keep their doors down when not in use, but a "rule"? I doubt it.

What other "rules" has your Board passed?

i would really like to know if the board is restricted to making rules for common areas only. If so, that is one restricted board. But, the quote the OP had seems to imply that restriction.

If that is so, then the board cannot make rules regarding house color, fixtures, pets (except to limit them on common areas), etc.. that would be one hamstrung board.

we need more info

"And if you read the covenants, that includes house colors, landscaape, noise, behaviors, etc.Therefore, Rules and Regs fall under their watch." Key words here are "covered in the covenants." OP states garage door closing requirement is not. That's all we have to go on. How can they create a rule that isn't "covered in the covenants?" Health and welfare of members doesn't cut it. And why would a board be concerned about theft of a member's property? Then they should get involved with ruling what locks to use, etc. Maybe they should mandate owners subscribe to their favorite security patrol. All just totally not a board concern. It needs to be covered in the covenants. You are giving boards open sesame to make rules. I think this would be a stretch and I would challenge it if fined.
Actually I agree garage doors should be kept closed when not in use, but I don't believe this board has that autority from the covenants quoted by OP. And just because I think it is a good idea, doesn't give me the right to mandate it to everyone. Harold

Unless your covenants specifically forbid the making of rules not included in the covenent, they can pretty much do what they think is right for the community, and you WILL have to comply. Most rules passed by most boards cover exactly those areas uncovered by the covenants. The covenants may not be changed so easily, and so are generally written loosely, and the community makes the rules needed to run day to day.

I know you think you are right, but arguing with us is pointless. If they pass the rule and you don't comply, be prepared for consequences you won't like. That's the bottom line.

Good luck

SC,
Do you hold a position on your Board? Curiosity makes me wonder because as a Board member you would already know what the obligations and strengths an association Board has which inclues following the CC&Rs, of which Rules and Regs is a part of. Rules can be written and changed at the whim of the Board. That is what they are elected to do and that is to run the day to day operations of the association. That gives them the ability to write rules and regs.

SC,

I know that this seems to be a "hot button" issue with you. Your original post asked us--

"I am questioning whether the Board can make a rule regarding garage doors that is not expressly stated in our Covenants. We are an HOA of detached homes. Our driveways are not part of common areas. And there is no way to interpret the covenants to mean the doors must be down at all times."
Even tho some feel that this is a dumb rule, others do not.

Doesn't the Association need to amend the covenants in order enforce the rule of keeping garage doors closed at all times? Our bylaws state that: The answer on that was argued because we did not have the exact wording of the entire garage rule but NO, the covenants do not need amending to enact the closed door rule.

"The Board shall have the exclusive righ to adopt and publish rules governing the use of the common elements and the personal conduct of the Members and guests thereon." Right here is the statement that empowers your Board to make rules as the deem right or nescessary for the association.

As for the CAI, they are a good scorce of information to you but state by state, the laws are different so their writtings and opinions are just that, opinions gathered by surveys.

I am a long time documents and Board person FYI and I do not just shoot from the hip.

SC (Georgia)

Here we go again on boards going beyond their authority. The number of replies shows the interest and the common problem in owners associations.

The protection for the owners is defined in the CC&Rs. The Association is an association of members who are the owners of property covered by the CC&Rs. The owners are governed by the CC&Rs which is a contract the owners have made with one another by purchasing property with restrictive covenants.

The protection comes from strict interpretation of the CC&Rs. Michigan case law appears to be similar to that in other states, but may be slightly different. The typical rules for interpretation in Michigan case law are “Restrictive covenants are to be read as a whole to give effect to the ascertainable intent of the drafter, and strictly construed against grantors and the parties seeking to enforce the covenants.  All doubts are to be resolved in favor of the free use of property.  Courts should not infer restrictions that are not expressly provided for in the controlling documents."  (Case citations eliminated)

If the association is granted the authority to regulate the position of garage doors, then they don't have the authority. Note that reasonableness is not a consideration in the interpretation.

On the other hand, if the CC&Rs grant the authority to the board to do anything that the board considers reasonable, then the board can do almost anything. The words in the CC&Rs have stupidly granted such authority to the board.

Hurry to amend your bylaws. Read what you have written: "The Board shall have the exclusive right to adopt and publish rules governing the use of the common elements and the personal conduct of the Members and guests thereon." Who in their right mind would ever give someone else such authority over his/her conduct? Such rules should be adopted by the members not imposed by the board. Your second quoted bylaw provision is just as bad unless the bylaws clearly limit the authority of the association.

Why do such onerous provisions get written? The answer is that they are initially written by the developer or developer's attorney who can then control the board during the development with the board controlling everything, the developer can control everything. They are also provisions that are typically supported by CAI. This is one of the insidious ways developers control associations. When developer is finished the owners association is stuck with inappropriate governing documents. An active governing documents committee is essential.

I don't know what all the fuss is about common areas. It is generally agreed that HOA boards have and can control common areas and activities thereon. But read the OP's first post: "We are an HOA of detached homes." What does control of common area have to do with regulating garage doors in detached homes?
I'm sorry Donna - but your quoted power covers common area only - it is very specific. How do you stretch that power to garage doors of detached homes? Unless given to them in the covenants, this is beyond their scope of power.

Don, you are correct, there is nothing that says HOA's must be fair. However, that doesn't preclude their power to regulate common areas and codes of conduct, because they have a fiduciary responsibility to do so. If they do not, and the HOA gets sued (drunk guest assaults owner, gets bit, gets injured, sticks his car in the grass and kills himself unsticking it), then all owners lose.

There are indeed laws that govern HOA's: Many states have them, Ca and AZ are two i know of offhand. There are covenants and codes to restrict their powers as well, and by-laws. There is a free press to shine a light into their actions, as well as concerned shareholders.

An HOA is a business, and is governed, monitored, and treated like a business. And as a business, they have a right to govern the conduct of people on the property that the business owns.

Are you actually arguing that an HOA should have no control over their own common areas, and that anyone can do anything they wish without repurcussion on them?

DonN said: "Who says that the board will be even handed in the rules and regulations for the common areas? HOA Talk has many examples to the contrary."

Point #1: and who says that they won't be even handed?

Point #2: HOA Talk has SOME people who CLAIM to the contrary, or that have anecdotes, not proven, that show some extreme examples, but that's quite a deceptive statement to claim that HOA is rife with examples of rules contrary to even-handedness.

I can think of NO post by any HOA professional or representative on HOA Talk who condones or exhibits unfair or self-promoting rules and regulations within their HOAs.

And I've already given my opinion on anyone's attempt to use "The Google" as a valid supporting argument for any position. I'd trust The Match Game's old "survey says" before I'd accept a search return number count on any word or phrase in "The Google" on "The Internets." One might as well say, "My mommy told me . . . "

Are there power hungry or out-of-control boards or board members out that? No doubt. And if one were try to impose unfair rules and then turn around and fine or all the other wonderful messes that they would try to push, the residents can, have and do flush them out eventually.

However, back to the Point #1. Regardless, if the CC&Rs allow a board to make rules and regulations, then they can and should do so. Just because overly paranoid, and equally power hungry or controlling homeowners, don't LIKE the rules, doesn't mean they aren't necessarily fair or even handed.

Donna, I think you are interpreting "the common elements" as the private property of homeowners. Maybe it means common facilities,ie; pool club house, ball field, etc.?

Yea. You're right. It's the Family Feud.

I'm going to pretend that you're older than I and that is why you know that. However, it's more likely that my age-rattled brain conflated the two!