Health, Safety, Welfare

Sorry, forgot to say this was done by the BOD not by majority
vote of members.
Edie

ClaytonG
This $1000.00 assessement was not by an amendment to the CCR's, but by the
BOD policy.

BruceF1
Yes I get it. Instead of the BOD amending the CCR's, they write these
policies and then try to enforce. The $1000.00 is to allow rental of homes
and for the tenants to use the common areas. Our covenants state that common
areas are appurtenant to all common areas. (meaning running with or addition to)
Edie

Edie,

The BOD has no authority to amend the CCRs, only the homeowners can do that. The BOD also gets it authority to write rules from the CCRs. However, the BOD cannot write rules that conflict with the CCRs, or write rules restricting something that is not in the CCRs. In other words, if the CCRs do not say anything about renting units, then the BOD has no authority to write any rules restricting or pertaining to rentals because by so doing, they are in effect re-writing or amending the CCRs, which they do not have the authority to do.

As far as the "health, safety, and welfare" thing, it sounds to me like an attempt to circumvent the CCRs. It probably wouldn't stand up in court. But, as I said before, we really need to know a little more. You might also want to check your state laws.

If you don't like what your board does, you can also try to recall them.

Clayton,

If the CCRs are silent on the issue, then I would say it would defer to state law. Of course, it also depends on how the state law is worded. For example, our state law begins many paragraphs with, "Unless otherwise provided in the Declaration..." which means that the particilar provision in the state law is a default provision, to be used only if the CCRs are silent on a particular issue.

However, if both the CCRs and the state law are silent on an issue, then, IMO, the BOD has no authority to create any rule it wishes. It can only create rules that enforce the provisions given in the documents or permitted to it by law.

Sidney:

Is this a detached home?

If so, I'm not sure what you expect the board to do about the shed and/or bad condition of the home.

We have no power to go onto people's property (short of a court order) to handle situations like that.

We can initiate warning letters and ultimately end up in court, and thereby get a court order, however, those types of actions don't happen overnight, nor do they even happen in a few months.

Each of the actions we've had to take to court took almost 2 years to actually reach the stage where we were in front of a judge.

So to someone having to look at the mess every day, it would APPEAR that we are "doing nothing," when really we're doing the best that we can, under the circumstances, as quickly as we can, under the circumstances.

One thing you and the board CAN do, but, quite frankly, since you live next door to it and have more details, is to report the condition to your local board of zoning code enforcement. They have much stronger and sharper "teeth" than the HOA board would have.

Bruce,

You stated: "For example, our state law begins many paragraphs with, "Unless otherwise provided in the Declaration..." which means that the particilar provision in the state law is a default provision, to be used only if the CCRs are silent on a particular issue."

My interpretation of that phrase is that the gov. docs trump state law. Another phrase commonly used in AZ statutes is: "Notwithstanding any provision in the declaration, bylaws or other documents to the contrary" which means that no matter what your docs say, the state law rules.

I do agree with you in saying that the BOD can only create a rule that pertains to a specific issue contained in their gov. docs. However, I'm not so sure that the Board can make rules to interpret State law. I believe there would need to be a State law giving them this power.

Mary, Michele,

I think we're pretty much in agreement here. Michele, I think Mary was merely giving an example of another commonly used phrase. I don't believe she intended that the two phrases meant the same thing.

As for the interpretation of "Unless otherwise provided" or some similar clause, perhaps it's best to use an example straight from the CT law:

"Unless the bylaws provide otherwise, a quorum is present throughout any meeting of the association if persons entitled to cast twenty percent of the votes that may be cast for election of the executive board are present in person or by proxy at the beginning of the meeting."

I interpret this to mean that if the bylaws specify a different percentage for a quorum, say 10% or 30%, then, as Mary said, the bylaws would trump state law as to the percentage of the quorum. However, if the bylaws say nothing about a quorum then the state law becomes a default requirement and the quorum is 20%. (Note that if Robert's Rules applied and the bylaws said nothing about a quorum, then it would default to 50%).

So, it can be said that if the subject is covered in the documents, then they prevail over state law, but if the subject is not covered in the documents, then the state law governs, which makes it the default provision.

By the way, CT's HOA laws are called The Connecticut Common Interest Ownership Act, and are based on the Uniform Common Interest Ownership Act which has also been adopted by Alaska, Colorado, Minnesota, Nevada, Vermont, and West Virginia. I think the New Jersey and Texas legislatures were also looking into adopting it.

Re: Edie's question: When CCR'S, Bylaws, Articles of Inc., state
"The HOA shall protect the health, safety, and welfare of the
community.," exactly what is the meaning of this statement. There
is a community that has levied a $1000.00 bond to any owner that rents
their home via the BOD policies, hanging their authority on this statement.
The CCR's do not address renting of homes. "

The Board has probably determined that rental situations have not worked out and are detrimental to the property or personal safety of the residents. So they are slapping a renter's "bond" to ensure that if there are problems, there will be money to cover renter's trashing of the units, etc. It also is a deterrent to rent our your unit, isn't it? That's what the board is trying to do, also.

If they have situations and/or research or facts to back up that renters tend to lowered property values by their behavior, and that money needs to be secured in case of, then they could very well argue their point effectively.

Why?

IF the CCRs allow renting, and the board can prove from past documented expereince that renters are a high risk, I see nothing wrong with placing a "bond" on the owner who wants to get involved in this side endeavor with his/her property.

It's no different than a security deposit, only it goes to the association.

I think it's a judgment call from the Board. Apparently, there have been problems with renters. Any costs should be forwarded on to the renter.

This would be laughed out of any court. Never get that far.

Edie,

There must be something before the paragraph -

"To promote the health, safety and welfare of the residents within the property described in Article IV a. above and any additions thereto as may hereafter be brought within the jurisdiction of this Association."

That's not a complete sentence, so there has to be something preceding that paragraph which states the purpose.

Susan states a reasonable argument, but the law isn't always fair and is almost never logical, so I don't necessarily agree that the board's actions would be upheld if it were tested in court. Are there any prior similar cases that anyone knows about?

Edie was there a resolution passed by the BOD to enact this policy citing their authority to do so or did the BOD simply say let's make anyone who rents their property post a bond?

Edir,

If the CCRs really say that the board can adopt rules for common areas only, then it seems to me that answers the question. Any rules regarding dwellings, which are not part of the common area, are off limits to the board. If the CCRs really say that, then IMO any rules regarding rentals are null and void because they would be conflicting with the CCRs.

Furthermore, if the board writes and adopts any rules, there must be a resolution (a duly made and seconded motion which has been voted on and passed) at some meeting to adopt the rules. This has to be done every time the rules are changed.

If rentals are allowed I don't see any legal way you can require the owner to post a bond...to me that is outside the scope of the boards power.

To cite the all misused phrase of health, safety, welfare, etc...well I can take just about anything and put that spin on it and argue you to death on it. I would post ridiculous examples but I will spare your welfare...

Define ". . .that. . ."

Hi all,

Before we leave this post, I have a separate but related question on this subject. Specifically, the BOD made a rule about renters, when the CCR was silent on the issue. What is the difference in this being an invalid rule vs. compiling rules/guidelines for the ARC? For example, my CCR is silent on solar power. How do I develop a guideline/rule for this?

Thanks