the mediocre debate: Use of language in covenants

in order to allow another thread to proceed without derailing, I bring this subject to a new thread.

Is there a legal difference between words in covenants? Specifically, i refer to a covenant that says "Owners should maintain their property in X manner", as opposed to a covenant that says "Owners shall maintain their property in X manner."

In my world (dealing with the OSHA and MSHA rules), should and shall have two very separate meanings. Shall is a directive, an order I must comply with. SHould is a suggestion by the government, one I have a choice to follow. I MUST do those things indicated by the word "shall", i may or may not do those things indicated by the word "should".

My company SHALL have an annual hearing testing program. Every employee SHOULD have their hearing tested annually. In my world, this means that I MUST have the testing available, and offer it to all my employees. However, if one chooses not to participate, I cannot force them to do so. If an employee doesn't take the test, I cannot be fined. If I fail to offer the test, I can be fined.

So, do such slight differences in wording translate over to CC&R's? Is there a difference in "shall" and "should"?

I draw my line in the sand, and say yes there is. other opinions are welcome.

Brian,
Yes there is and I totally agree with you. This is a huge reason that Boards get in trouble with enforcement of documents that are poorly written. Hence the post on the R.V covenant and probably a hundred more that have shown up on this site.

roger, if a rule uses the word Shall, i doubt it ever a court would uphold that it was a suggestion. Conversely, if a rule uses the word Should, i could see a court ruling that it was intended to be a rule, not a suggestion. I would advise that the rulings go one way only, towards restrictive, hardly every to less restrictive.

As for intent: Donna mentioned in another thread that courts will try to interpret "intent" of the original writers, and they will. Intent is difficult to gauge in some cases, and very arguable. If all rules used the word "10 pm" and one rule used the word 10 am, the court would easily decide that the intent of the authors was for a 10 pm rule, they just made a mistake. However, if all the words were 10 pm, it would be difficult for a court to rule that the authors intent was "sunset". If all the rules are "should", it would be arguable what the original intent was: a command or a suggestion. It's hard to know original intent without some other contextual items from the authors.

Just use the word "must" or "are required to"

The use of should and shall is well described. "Should" is likely not enforceable because the requirement is not clearly stated. Covenants are strictly interpreted.

A more subtle and serious language issue concerns authorizations ---for something--- that "is not inconsistent with" OR "is consistent with" a specific named provision in the CC&Rs. For example, this could be an authorization for the Association to promulgate rules and regulations.

The phrase "not inconsistent with" is basically open ended. The authorization is for anything "not inconsistent with" the named provision in the CC&Rs. If the provision concerns topic A, then B, C, and D can be done if they are not inconsistent with A.

On the other hand, the phrase "is consistent with" narrows the scope of the authority to what is defined in the named provision of the CC&Rs. This language does not permit expansion of requirements.

For example, a CC&R provision stating "The Association shall have the authority to promulgate rules and regulations consistent with this provision for the administration of this provision." clearly defines the limits of the authorization.