💬 Join us to post & get advice from 50,000 HOA & Condo leaders.

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in

LoriE (Indiana)
Posts: 34
Posted:
Are the BoD's Policies and Procedures enforceable? Are they worth the paper they are written on? The reason they were written was for the board president to control 2 of the board members he did not like.

I would like your opinion(s) on this matter! Thanks.
SusanW1 (Michigan)
Posts: 5,202
Posted:
Policies and Procedures are voted on (from a motion)by the Board, usually with a majority vote. Your president is ONE vote.

So what is the Pres. using from the P/P to control others?
HaroldS (Arizona)
Posts: 906
Posted:
How large is the board? If only three members, how on earth can one person dominate two? They could even remove him as president - make him secretary!
MaryA1 (Arizona)
Posts: 7,043
Posted:
Lori,

And to add to Harold's remarks. If the board is larger than 3 members, then the others must be supportive of the Pres. actions.

But to answer your question as to whether the board adopted policies and procedures are enforceable. If they were approved (usually by a resolution) by the board then they are to be followed. Whether they would hold up in court is another matter. If these were board adopted rules that all members had to follow I would say yes. But policies and procedures are generally only guidelines for board members to follow in conducting the business of the assn.
BruceF1 (Connecticut)
Posts: 2,535
Posted:
Lori,

Who "passed" the policies and procedures, the board? or the president?

Do the policies and procedures conflict with the statutes, CCRs or the bylaws? If they do, they are not enforceable.

Also, are they ADMINISTRATIVE procedures? Administrative procedures have a lower precedence than parliamentary procedures.

Finally, who enforces policies and procedures? Not the president. If the policies are procedures have been passed by the board, then they must be enforced by the board. If the policies and procedures were "passed" by one person (any one person, including the president), then they don't exist and cannot be enforced.

Each board member is an equal. The president has no authority over the board.
RogerB (Colorado)
Posts: 5,067
Posted:
Lori, it depends.
1. Does your Declaration and/or By-laws allow the Board to pass Rules and Regulations? Or must the Rules and Regulations be approved at a meeting of the association members?
2. Are the Rules and Regulations reasonable? If not then a court probably would not uphold them.
3. If the Rules and Regulations are properly approve, and reasonable then will the Board be willing to take it to court to try to enforce them if ignored by a member? If the answer to #3 is yes then they are enforcable.
BruceF1 (Connecticut)
Posts: 2,535
Posted:
Roger,

I understood that Lori was referring to "policies and procedures" imposed on the board, not "rules and regulations" imposed on association members. I think you are referring to the latter. They would not be the same thing.

Lori, which is it?
EdieL (Virginia)
Posts: 86
Posted:
BruceF1
It can get more confussion. Our CCR's allow our BOD to adopt rules and reg's.
for our common areas. The BOD has put these rules and reg's as a sub topic in
their policy and proceedures. Some of their rules and reg's do conflict with
the CCR's. BOD's have their presumed power to do anything unless challanged
by the membership. There lies most problems, getting the membership to act!!
Edie
DonnaS (Tennessee)
Posts: 5,671
Posted:

Rules and Regs are always adopted by the BOD BUT they absolutely MUST NOT conflict with the CC&Rs. Do something about that as a smart member of the association. Under Florida law, Rules and Regs must be presented to the general membership 14 days prior to a meeting of the membership at which time, the Board is to approve them. The membership is given time by a prior written request, to address the Board with their statements. The key here is that the members have the R.and R's. 14 days prior.

We had a Master President who was adament that all garage doors must be closed at all times except for ingress and egress even after the Documents Committee (I am Chair) told her that we refused to add this because it was unworkable and unenforceable. Well, 30 members later, who had requested their 3 minutes of "air time", convinced her that she would never get this enforced. The masses told her that ALL of the garage doors would remain open if this was passed. It was removed. YEA! So even if the Board has written something so blatantly dumb, the membership can do something about it.
MaryA1 (Arizona)
Posts: 7,043
Posted:
Donna,

Hooray for the state of FL! At least the membership has the opportunity to review the R&R's b/4 they are adopted by the Board. Here in AZ there is no such law. In most assn docs the board approves the new rules w/o member input or a vote. It's always been my opinion that the members should vote on the rules since they carry the same weight as the CCRs once they're adopted by the board.
MicheleD (Kentucky)
Posts: 4,491
Posted:
Mary, that would make sense.

Our board is just getting ready to embark on drafting some Rules and Regulations (if anyone has some they could provide for us so that we can have some baselines, that would be great).

Our attorney has recommended that after we draft them that we call a meeting and have the membership "ratify" them.

That is not NECESSARY by either our CC&Rs or Bylaws, or by our state laws or local ordinances, but he suggested that it is easier to enforce them later on down the road with that extra step added in.

That way we can have a paper trail that all members were allowed access to and input regarding the R&Rs and they were "ratified" by the membership.

RogerB (Colorado)
Posts: 5,067
Posted:
Michele, your attorney's advice is excellent. We recommend to all Boards that the members be allowed to ratify all Rules & Regs. The Board usually is provided the power to approve but that has limited value if the owners will not comply. Rules and Regs carry significantly less authority than the CC&Rs when viewed by the courts. The key question is "Are they reasonable?"
HaroldS (Arizona)
Posts: 906
Posted:
Mary - can you please explain and cite your reference for this statement? "...rules since they carry the same weight as the CCRs once they're adopted by the board."

MaryA1 (Arizona)
Posts: 7,043
Posted:
Harold,

Since the CCRs give the board the power to adopt, amend and repeal rules and regulations, IMO, they carry the same weight as the CCRs.
HaroldS (Arizona)
Posts: 906
Posted:
So Mary, now it is just your opinion? It is also just my opinion that rules & regulations would be viewed differently by a court than they would view the CC&Rs. R&Rs are probably more prone to be viewed by a court under a "reasonableness" application than would the CC&Rs. So hardly equal weight.
Oh, and it is not just my opinion. Here's a quote from Roger earlier in another thread: "09/04/2007 8:54 AM Quote Reply: Meanwhile, restrictions in the CC&Rs carry much more weight in court than if they are in the R&Rs." So maybe Roger knows that to be a fact?
MaryA1 (Arizona)
Posts: 7,043
Posted:
Harold,

Please re-read my response in which I said: "It's always been my opinion. . ."

I don't know who Rogers is. Perhaps that was just his opinion too.
HaroldS (Arizona)
Posts: 906
Posted:
Who is Roger? See above for his two posts on this thread alone. You'll notice he has 3,467 posts on HOATalk and I personally respect his knowledge and opinions.
The simple fact is that rules and regulations are not in the same hierarchy as CC&Rs. Therefore are not and cannot be the same "weight." Of course, that is just my opinion.
MicheleD (Kentucky)
Posts: 4,491
Posted:
Harold, I disagree as well.

BECAUSE our CC&Rs give the board the ability to create Rules & Regs, judges (at least here anyway) give them very much the same weight as the CC&Rs unless they obviously conflict.

Our attorney has informed us of this and said that even though we don't "NEED" to ratify them for the court to approach them with the same weight, it would be more helpful to us, in the cases where there might be an extremely stubborn resident.

LoriE (Indiana)
Posts: 34
Posted:
Our by-laws and CCRs do not mention policy and procedures for the board. The president made policies and procedures that only affected the board members he didn't like. Ridiculous policy and procedures. I have not checked statutes in Indiana yet.

They are administrative procedures on running the HOA amongst the board. The board passed the policies. The board has not made these policy and procedures available to the membership. They like to do things in secret. I've called them on the carpet on numerous issues and they don't like it. They have the mentality "that's the way we have always done it".

We have 3 board members who are spiteful, hateful, narrow-minded, self-absorbed and bitter. Our board has 5 members. We have a trifecta that runs our board. The voice of the other 2 members doesn't matter if they don't go along.
MicheleD (Kentucky)
Posts: 4,491
Posted:
Wow. Lori, that stinks.

But "policies & procedures" is different from "rules & regulations," at least in our HOA in terms of who they are applied to, how they are created and who can enforce.

The gist is as was mentioned by an earlier poster:

The policies and procedures is a set of administrative guidelines that is created by the board for the function of the board, and, obviously, enforced by the board on itself.

Rules & regs are developed by the board, will be ratified by the membership, though they don't HAVE to be, and are enforced against the membership.

Sorry you have run into such difficult individuals. If you can remain on the board, as uncomfortable as it is, I would say stick it out.

Good luck to you.
BruceF1 (Connecticut)
Posts: 2,535
Posted:
Lori,
"that's the way we have always done it" has got to be the worst excuse in the world. It's the one you use when you're too unimaginative to come up with something better. If we all lived by that, the world would still be flat, the sun and stars would still revolve around the earth, we'd all be traveling by horseback, and on and on.

Unfortunately, when it's 3 them vs. 2 you, there's not much you can do.
HaroldS (Arizona)
Posts: 906
Posted:
Michele - Here is a quote from a newspaper article on the HOA home page under Daily News: SC: Bill would govern HOA Boards.

"But what has galled residents more are rules that seem to appear without warning, such as what colors of Christmas lights can be displayed."

That is the type of "rules" boards dream up using the power you say they have? Equal weight with CC&Rs?
I...don't...think...so.
MaryA1 (Arizona)
Posts: 7,043
Posted:
The fact that the CCRs give the board the authority to pass rules, IMO, makes those rules enforceable just as the CCRs are enforceable. However, IMO, it all depends upon the rule as to whether or not it might have the same enforeceability as a CCR restriction. For example, the Christmas lights color -- I doubt that rule would hold up in court.

Harold, note I prefaced my remarks with "IMO" - in my opinion!!
MicheleD (Kentucky)
Posts: 4,491
Posted:
Quote:
Posted By HaroldS on 04/15/2008 10:15 AM
Michele - Here is a quote from a newspaper article on the HOA home page under Daily News: SC: Bill would govern HOA Boards.

"But what has galled residents more are rules that seem to appear without warning, such as what colors of Christmas lights can be displayed."

That is the type of "rules" boards dream up using the power you say they have? Equal weight with CC&Rs?
I...don't...think...so.

But...yet...I...do...think...so....

Looks like, yet again, we must just agree to disagree.

I'm sensing a pattern here. . .
MicheleD (Kentucky)
Posts: 4,491
Posted:
One more thing:

If a board is sloppy in how it develops, words, communicates or enforces its Rules & Regulations, that same board is probably just as sloppy in how it amends, communicates or enforces its CC&Rs.

In cases like that I can most definitely see that a court might not uphold the R&Rs -- or even the CC&Rs, depending on just how sloppy the board is.

Conversely, if a board is transparent, fair and communicative in how it develops, words, communicates or enforces its Rules & Regulations, just as diligent as how it amends, communicates or enforces its CC&Rs, then the R&Rs, if challenged, or when challenged, will be held up just as legitimately by courts as the CC&Rs would be IF THE CC&RS GIVE THE BOARD THE ABILITY TO DRAFT AND ENFORCE R&Rs.

It's just ludicrous to imply that they wouldn't JUST because they are Rules & Regulations, and JUST because some sloppy boards don't handle them properly.

We have many HOAs who have had successful challenges to their R&Rs, to the extent of a court challenge, and I don't know of one that has had them found wanting.

The subdivision next to us had a homeowner challenge the board's R&Rs on security doors. She lost. She had to remove the security door and replace it with a different type. One that was in accordance with her HOAs Rules and Regulations (because her CC&Rs didn't address security doors specifically). The same thing happened with another homeowner who installed a brick casement around his mailbox. His Rules & Regulations dealt with mailbox specifics, his CC&Rs did not. Yet, the judge upheld the board's ability to enforce the mailbox R&Rs.

IF that HOA in the newspaper article had done a proper job of how it developed and/or communicated and enforced their R&Rs re: Christmas Lights, then the residents might still complain, but they would still have to follow the Rules & Regulations, just as they would have to follow the CC&Rs that speak to Rules & Regulations.

Otherwise, what's the point in a set of Deed Conditions, Covenants & Restrictions ever placing a Rules & Regulations stipulation in it?!

So. Let's just disagree. You say potato -- I'll say orange. We'll both remain happy.

MaryA1 (Arizona)
Posts: 7,043
Posted:
Michelle,

Very eloquently put! Of course I agree with you completely as evidenced in my response posted above yours. :-)

🎯 You've read this entire discussion

Join the conversation with 50,000 HOA & Condo Leaders:

  • ✓ Ask follow-up questions
  • ✓ Share your experience
  • ✓ Get expert advice
  • ✓ Access 350,000 discussions
Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in here