Rule Change

Started by BobT2 • 24 replies • 1703 views

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BobT2 (California)
Posts: 43

Posted:

My BOD put up an amendment change and the homeowners vote on it and it did not pass. At the next meeting of the homeowners they take the exact wording and are going to adopt it into a RULE instead would that be considered "unreasonable"?
The BOD did give us notice but in an email has stated that "we dont even need the homeowners approval to make it a Rule"
CA law requires that it be reasonable and pass in good faith. I say it is neither. Has anyone ever had this happen and what did they do

John

TracyT (Maryland)
Posts: 228

Posted:

What document did the BOD want to amend?

BobT2 (California)
Posts: 43

Posted:

The vote was to amend the CCR's. The vote did not pass but the board says "we can just change the Rules and Regs. It would be so easy and we would not even need homeowner approval"

DonnaS (Tennessee)
Posts: 5,671

Posted:

Bob,
You need to give us better information. A vote to amend your Covenant was for what? It all depends on what this was to know if a rule and reg can be written to cover whatever this item is. Basically, Rules and Regs cannot conflict with the CC&Rs and usually their purpose is to enhance or tweek the covenant that they are written for.

TracyT (Maryland)
Posts: 228

Posted:

I agree. Please tell us exactly what the covenant says AND what the [alleged] rule is.

BobT2 (California)
Posts: 43

Posted:

Sorry. It is 4 pages of trying to define what a commercial vehicle is. It was voted on as an amendment and did not pass. The board decided to make it a change to the Rules and Regs. The only problem is that it still states the followin

Definitions
For the purpose of this section a "commercial Vehicle" shall mean a vehcile that fits any of the descriptiond below:
A. A vehicle of a type that is rewquired to be registered as a commercial vehicle under Section 260 of the California Vehicle Code."

CA Vehicle Code says any truck is commercial so were back to all trucks right?
It also goes on to explain that all CAvehicle codes apply.
the board intent is not to include pickup trucks but the wording say different. I think.
CA Vehicle Code says all pickup trucks are commercial trucks. Thanks for the imput

TracyT (Maryland)
Posts: 228

Posted:

Well, my covenant says "commercial truck (as defined by MD Dept. of Motor Vehicles and/or defined by common usage and practice)". I once spent several hours on the DMV web site trying to figure out what a "commercial truck" was to no avail.

Unless you can find otherwise in CA code or your CCR, it seems that if the board did not intend to exclude pick-ups they might have said something to the effect "and/or defined by common usage and practice" or "pick-up trucks for personal transportion".

I agree there may be a wording issue and would engage the BOD in a conversation on their intent. Then make wording suggestions for a rule that works.

I'm not up on CA law but I'm not sure the e-mail notification is up to snuff.

Also, I believe it was Donna who recently posted about her case in FL on what is a (personal) truck is or isn't. You might look back a couple of pages to review her case results - just as an FYI.

Good luck.

BrianB (California)
Posts: 2,820

Posted:

i would say that defining what a commercial vehicle is belongs in the rules. Having a code/covenant allowing or banning commercial vehicles is a high standard, and should be in the CC&R's. Defining what the HOA believes are commerical vehicles is well within the RULE section, IMO.

Of course, california does suck, because you are correct, every pick up truck in Cali is a commercial vehicle. Do they know that?

SusanW1 (Michigan)
Posts: 5,202

Posted:

Bob - remember: the collective MEMBERS have the most power in an HOA.

If this Board-adopted "rule" is contrary to the intention in the CCR's, then call a special meeting of the Members and overturn the "rule"

CharlesW1 (Georgia)
Posts: 826

Posted:

BobT2,

I find it hard to believe that the board purposed an amendment to the community wanting to amend the governing documents and it failed?! TO PERMIT PICK-UP TRUCKS, were your CC&Rs currently DON'T allow such vehicles, thus “making” you established a rule that says otherwise.

I do believe that the board can establish rules and regulations although, they do need to notify the entire membership of this rule, prior to implementing it.

I too would have changed that amendment immediately. I also would think that the majority of homeowners would have approved such a beneficial covenant as well.

NOT ALLOWING PICK-UP TRUCK IS LESS REASONABLE THAN ALLOWING THEM! IMO “If” I were you (which I’m not) I would simple state NO PICK-UP TRUCKS W/ LOGO OR ADVERTISEMENT, LADDERS OF PARTICULAR LENGTH, PICK-UP TRUCKS W/RACKS (ladder racks),WOULD ALSO BE CONSIDERED A COMMERCIAL VEHICLE.

I would think that the board would need to change this covenant due to the fact it is unreasonable, to say NO pick-up truck that ONE of the most ridiculous things I have every heard.

Just my opinion.
Chuck W.

Charles E. Wafer Jr.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Bob,

IMO, you are right to be very concerned about the CCR/rule change. If the board could just adopt a rule w/o member approval, why were they seeking a change in the CCRs which requires member approval? Sorry, but the logic escapes me. Something smells fishy in Denmark!

BobT2 (California)
Posts: 43

Posted:

Went to the meeeting.The board voted 4-1 to pass the amendment to the Rules and Regulations even after homeowner input that was not pretty. The board admitted to spending over$4,000. (They actually have spent over 8,000) The homeowners asked "you mean the memebers voted no on the amendment change and it did not pass and now you can just add it to the rules?" The boards response is Yes, when you voted us in you gave us the authority to do so.
So now the rules will be changed to say the following

Vehicle Restrictions

No commercial vehicle which is owned by a resident of XXXXX shall be parked in the residents driveway or on the private streets within the project. Such resident-owned commercial vehicle must be parked behind the fence or in the garage of the resident.

Any commercial vehicle which is non-resident owned, and is present in the project for purposes of delivery of goods or performing services shall not park in the project for any more than a nine hour period per day and shall under NO circumstance remain in the project overnight.

That is what is contained in the Restrictions portion. Nothing about signage ladder racks. So if Mr Smith next door works for the strip joint and drives the strip joint car that is covered in the new type of stickers that covers the whole car windows and all, that is half dressed showgirls and says the name of the strip bar all over it he would be allowed to park his comercial vehicle on the drive correct?
If anyone drives a vehicle that is company owned or owned by a corporation would they be able to drive and park their truck/car in the drive also? The board says they are trying to keep the project "residential in nature" I do not think they accomplished that. They also said they did not seek legal advice on the wording because they spent to much money already on this. They also will fine but will not file any lawsuit against anyone in regards to parking commercial vehicles.They said we will just keep fining and 250.00/month adds up fast. I did have 3 homeowners come over and tell me they want to join the board in August.
I think my board is a prime example of why HOA get a bad rap. Meanwhile our greenbelts are bare and in spots filled with weeds.

BrianB (California)
Posts: 2,820

Posted:

Quote:

Posted By BobT2 on 04/24/2008 7:05 AM
So now the rules will be changed to say the following
Vehicle Restrictions
No commercial vehicle which is owned by a resident of XXXXX shall be parked in the residents driveway or on the private streets within the project. Such resident-owned commercial vehicle must be parked behind the fence or in the garage of the resident.

Any commercial vehicle which is non-resident owned, and is present in the project for purposes of delivery of goods or performing services shall not park in the project for any more than a nine hour period per day and shall under NO circumstance remain in the project overnight.

Bob, you are semi correct. Under California law, pick up trucks must be parked in garages or behind fences from now on in your HOA, because ALL pick up trucks in Cali are commercial vehicles.

Probably, the strip club car, the Termite Toyota, or the "Get Green with Green to go" Pontiac can all park safely in the drive ways, because California does not consider a vehicle with advertising to be commercial, unless the owner registers it as such. So yes, a Chevette with placards and stickers and a NAPA Yellow Hat on top is legally parkable, but my Mitsubishi Raider is not.

I would simply start writing complaints about every pick up truck in the HOA, and let the board deal with the bed they made.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Bob,

All I can say is, "unbelievable"!!! And, still no definition of "commercial vehicle".

SusanW1 (Michigan)
Posts: 5,202

Posted:

Bob - you have bigger problems than trucks in driveways: you have a board that refuses to listen to the Members. The Members said NO to the amendment. Why does the Board think the Members should accept the SAME wording as a board-passed "rule"??

As I said - the Collective Membership can overturn this rule with a special meeting.

This is a slippery slope your board is riding on . . .

DonnaS (Tennessee)
Posts: 5,671

Posted:

Bob,
What does it say in the Covenant portion of your Docs? Is there anything reguarding the commercial vehicles and parking restrictions for them?

An amendment to restrict the commercial vehicles from driveway or outside parking failed. Were they allowed before this proposed amendment failed?

Much depends on what the restrictive covenant says so send that out to us. I went to court with truck classification so this is sort of a passion for me. Thanks.

JaneK (California)
Posts: 175

Posted:

I have to agree with SusanW’s posts, Why would the board pass something that homeowners are against?
(I’m not getting into the fray about what constitutes a commercial vehicle.)

“The boards response is Yes, when you voted us in you gave us the authority to do so.” Not quite true.

It appears to me that the board may not have followed CA Civil Code 1357.100 concerning operating rules. The code states the the board must notify the membership (in writing, I believe) of a proposed rule and give them 30 days to comment. It also contains provisions for rejection of the rule.
Look up the code: www.leginfo.ca.gov
Very slippery territory.
Jane

BobT2 (California)
Posts: 43

Posted:

I did get the whole story last niht.
Guy has work truck, parks in drive. Truck has parked for over 2 years in drive. Board says its commercial guy says then make everyone move. Board says no only you because you use yours for work. Guys says Commercial is commercial, truck is truck. The CCR say both truck and commercial vehicle must be parked behind fence. Board says fine we will change the CCR to include your truck. Have CCR vote chane it fails. Board says we have the authority to change the rules so we will just do that. Guy, and several Homeowners state at mmeting to change rules that the board is looking for a lawsuit as the Homeowners voted down amendment and so you take exact wording and make a rule. They also worry that the guy will file a lawsuit for harassment because all along they have be sending him fines and even though they agree that the ccr are not clear this rule change is to clear them and the board can keep giving fines. Board says dont worry if a lawsuit is filed against the association then we will just use our insurance. I have seen letters from the board and their lawyer to back this all up. I think the homeowner has a point about harassment. I guess this guy has posts on this site somewhere. That is it in a nutshell. Nothing I can do about it so I am movin on!!!

DonnaS (Tennessee)
Posts: 5,671

Posted:

Bob,
What the Board thinks that they can do against this guy is called "SELECTIVE ENFORCEMENT" and if it went to court, the Association WOULD LOSE THE CASE. The CC&Rs say NO truck or commercial vehicles outside of garages or fenced in areas. The wording of trucks or commercial (probably means vans, etc)

What I cannot grasp is what did the amendment say and what was voted down from it? The CC&Rs say no commercial trucks and the new Rules say, no commercial trucks. So what exactly is going on except for the definition of what trucks and commercial vehicles mean.

BobT2 (California)
Posts: 43

Posted:

I agree we have a huge problem and I am trying to fix it before it goes to court. From what the owner tells me they have spoken to an attorney and they have a solid case. So if they file a lawsuit we all pay. As I stated before the ccrs say trucks and commercial vehicles. The board says trucks are fine because they are pickup trucks used for personal use. The guy with the truck has said he does use his for personal use and to drive back and forth to work. Every direction the board has taken this still includes all trucks and commercial vehicles. The amendment that did not pass that has now become a rule as of 2 nights ago is the exact same docuement. It is 4 pages that attempts to define a commercial vehicle. Problem is that in the 4 pages it states the following.

A commercial vehicle is on that is required to be registered as one under section 260 of the CA Vehicle Code.

All County and State Vehicle Codes will apply and will be enforcec.

My problem is that 260 does say that all pickup, some SUV are commercial vehicles. So the board is incorrect there. Also the board is missing the point. The homeowner has said in writing (I have seem it) that If they are to move their truck they will do so as long as all trucks are required to move also. The board keeps going to "Commercial" but the homeowner has a point that our CCRs say trucks and commercial vehicles.

The 2 Parking restrictions in the 4 pages are the followin:

1. Resident owned commercial vehicles.....
2. Non resident owner commercial vehciled in the project for delivery or service...

This guy brings home his company vehicle that is owned by a corporation so neither of these restriction fit.
The homeowner will fight and win and we are all going to pay in the end. I dont know if it is worth the homeowner to put our money to fight it. His answer is that if he is forced to court then he is going for blood and will get pain and suffering also. Does this happen in the court system or would the board just be told to back off??
I see what the board is trying to do keeping our project "residential in nature" but they have not done this they have just defined commercial vehicles in favor of this homeowner. I think the power the board has, has clouded their vision as to what is best for all. I just hope to get our before the lawsuit starts. With the real estate market I dont think I stand a chance in that happening so I may just keep trying to help. Also the homeowner says he did go to IDR with one board member and got a response that said he had 30 days to move the truck or will be fined 100.00 month. I think I will move my truck until this is resolved. Call me a chicken but I dont have the time to fight.

BrianB (California)
Posts: 2,820

Posted:

lol.. your board is dug in deep. They need to STOP, open their ears and listen to some folks who actually know what good advice is, and then regroup and try to get done what they want. So far, all they have done is create a huge omlette and applied it directly to their own face. If they persist, I suspect a lawsuit will get their attention.

KathyS (California)
Posts: 145

Posted:

This is the California law regarding rule changes in Associations. I don't think your Board approached everything properly.

Civil Code §1357.130. Notice of Proposed Rule Change

(a) The board of directors shall provide written notice of a proposed rule change to the members at least 30 days before making the rule change. The notice shall include the text of the proposed rule change and a description of the purpose and effect of the proposed rule change. Notice is not required under this subdivision if the board of directors determines that an immediate rule change is necessary to address an imminent threat to public health or safety or imminent risk of substantial economic loss to the association.

(b) A decision on a proposed rule change shall be made at a meeting of the board of directors, after consideration of any comments made by association members.

(c) As soon as possible after making a rule change, but not more than 15 days after making the rule change, the board of directors shall deliver notice of the rule change to every association member. If the rule change was an emergency rule change made under subdivision (d), the notice shall include the text of the rule change, a description of the purpose and effect of the rule change, and the date that the rule change expires.

(d) If the board of directors determines that an immediate rule change is required to address an imminent threat to public health or safety, or an imminent risk of substantial economic loss to the association, it may make an emergency rule change; and no notice is required, as specified in subdivision (a). An emergency rule change is effective for 120 days, unless the rule change provides for a shorter effective period. A rule change made under this subdivision may not be readopted under this subdivision.

(e) A notice required by this section is subject to Section 1350.7.

Civil Code §1357.140. Member Veto of Rule Changes

(a) Members of an association owning 5 percent or more of the separate interests may call a special meeting of the members to reverse a rule change.

(b) A special meeting of the members may be called by delivering a written request to the president or secretary of the board of directors, after which the board shall deliver notice of the meeting to the association's members and hold the meeting in conformity with Section 7511 of the Corporations Code. The written request may not be delivered more than 30 days after the members of the association are notified of the rule change. Members are deemed to have been notified of a rule change on delivery of notice of the rule change, or on enforcement of the resulting rule, whichever is sooner. For the purposes of Section 8330 of the Corporations Code, collection of signatures to call a special meeting under this section is a purpose reasonably related to the interests of the members of the association. A member request to copy or inspect the membership list solely for that purpose may not be denied on the grounds that the purpose is not reasonably related to the member's interests as a member.

(c) The rule change may be reversed by the affirmative vote of a majority of the votes represented and voting at a duly held meeting at which a quorum is present (which affirmative votes also constitute a majority of the required quorum), or if the declaration or bylaws require a greater proportion, by the affirmative vote or written ballot of the proportion required. In lieu of calling the meeting described in this section, the board may distribute a written ballot to every member of the association in conformity with the requirements of Section 7513 of the Corporations Code.

(d) Unless otherwise provided in the declaration or bylaws, for the purposes of this section, a member may cast one vote per separate interest owned.

(e) A meeting called under this section is governed by Chapter 5 (commencing with Section 7510) of Part 3 of Division 2 of Title 1 of, and Sections 7612 and 7613 of, the Corporations Code.

(f) A rule change reversed under this section may not be readopted for one year after the date of the meeting reversing the rule change. Nothing in this section precludes the board of directors from adopting a different rule on the same subject as the rule change that has been reversed.

(g) As soon as possible after the close of voting, but not more than 15 days after the close of voting, the board of directors shall provide notice of the results of a member vote held pursuant to this section to every association member. Delivery of notice under this subdivision is subject to Section 1350.7.

(h) This section does not apply to an emergency rule change made under subdivision (d) of Section 1357.130.

JaneK (California)
Posts: 175

Posted:

Thanks KathyS for clarifying the exact codes. DonnaS is right, the Assn will probably lose the battle and if your board is thinking the insurance take care of it, they may be in for a rude awakening. I believe that if the board is knowingly selectively enforcing and in addition has not followed the procedure outlined by law, the insurance company could easily deny coverage. If the insurance company does cover the lawsuit, they can and most likely will either raise the rates or cancel the policy. Fiduciary duty.
Something to think about.
Jane

BobT2 (California)
Posts: 43

Posted:

Thanks everyone for the information. I think I am in for a long battle. I hope to speak with some of the board members and forward the information to them and see if we can resolve this beofre it gets more out of hand. As for the Homeowner, they have had enough and told me they have tried everything in their power to get this resolved to no avail. He did say the board does not even answer his questions anymore. I am uncomfortable with the board if this is so. It may be too late to resolve this among ourselves. As a homeowner myself I am worried how much this is going to cost me if what people are saying about the insurance not covering this I am really bothered by this. I did ask the homeowner if he would like to get a petition to reverse the rule going and I would help him. His said he is done and will be retaining his attorney to handle this. I hope a day or so to cool him off and then I will approch him again to try to intervene with the board.
I will run for an open seat in August.

SusanW1 (Michigan)
Posts: 5,202

Posted:

Bob - you don't have to do anything. This fellow should continue to do his thing. If the Board pushes the issue, remind them that their "adopted rule" is worthless, was put in place illegally, and will not hold up in court.

Your Board needs an education about their own rules and regulations they should follow.

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