Help to decipher by-law wording

By-Law under powers and duty of the Board of Directors:

"Adopt and publish rules and regulations governing the use of the common areas, recreational facilities, and the Lots and the personal conduct of the members and their families members and guests thereon, and to establish reasonable penalties for the infraction of said rules and regulations, the declaration and these by-laws, including the imposition of monetary fines which, once imposed..."

Does the word "use" give the board the ability to place fines on such things as maintenance for mailbox falling over, fence rotting, cracks in porch and step, etc. Or does it mean actually using the lot for something like: can't run a business, can't park a car on lot, can't play football on lot.

Or Both and all things?

What would publish be. Does the board have to publish publicly and make available for all to the rules and regulations that they have adopted before they can impose fines?

Jeff, you are trying to hard to parse words here. I think a eminently reasonable interpretation of the bylaws would include mailboxes etc. And publish, reasonably interpreted, means to make known. Yes, the board has to make the rules known before it can fine.

Truly it is unproductive to pick apart bylaws, whether it is the board doing it or a member.

Oh man, I can just imagine all the comments from the word parsers here.

Personally I want the HOA to be able to fine for maintenance such as rotten fencing, siding falling off, maiboxes bent and leaning over. I just am trying to make sure that they have the right to do it and everything is kosher so that their isn't any problems.

One thing that does irritate me is that it is hard to find out what are infractions and what the fines are. Things are not easy to fined until the homeowner gets a violation letter.

Tomorrow we are holding hearings for violations made before me and several other board member were elected to the board. I have to sit there and listen to the griping. How can I tell them tough luck if I cannot show them were it dictates that it is a violation and that the board has the right to fine them and that we are not just making this stuff up as we go. Especially when they have had or others have beening doing the same thing for years without any violations.

After a couple months of bitching to get the published rules and regs, the only thing provided was an Annual Inspection Procedure which has loosely defines what is looked at. For instance some homeowners are fined for a rotten fence. Here is whatis stated:
"Fences are not required, but if utilized must be no more then 6 feet in height. An Architectural Change Request is required whenever an fence is installed or replaced."

Nothing about being stained, rotten post, missing slates or parts, replacement slates must be identical to the original, etc.

Sorry, but I do not mean to beat this to death, but I want to make changes and want to make sure that I have a good system in place. Wording and all. I want to make it fair and let the community know what is expected by at least letting them have easy access to the rules and regs.

JeffT: I think you have only part of the facts necessary to answer your question. Your post refers to "rules and regulations, the declaration and these by-laws". I presume the declaration is the CC&Rs which run with the land, and is the superior document.

Any powers of the board for the rules and regulations related to the land and its uses must be based on the CC&Rs. If the board isn't authorized in the CC&Rs, it does not have the authority to issue rules and regulations for that area/aspect.

Do the bylaws run with the land or are they the bylaws for the governance of the owners association? If the the latter, I believe the bylaw provision you quoted applies only to what is authorized in the CC&Rs. If it is carte blanche, your owners are subject to abuse. I would then recommend immediate amendment to specifically define the powers and limitations of the board.

More information is needed to answer your question.

I would think that the Deed Conditions, Covenants and Restrictions would contain a clause that addresses the lot owners' "Duty to Maintain."

Such a clause would apply to ANY structure on the lot and not necessarily require a separate rule for each and every thing an ARC would approve.

Such a section could read something like this:

Section 6. Duty to Maintain Lot.

(b) From and after the date construction of a single family residence on a lot is started, it shall be the duty of each lot owner to keep the grass on the lot properly cut, to keep the lot free from weeds and trash, and to keep it otherwise neat and attractive in appearance, including repairs to any structure due either to normal wear and tear or damage due to unexpected event.

While I understand that you want the ability to fine for maintenance and other issues, this is not what the place to hang the hat on.

I will go with Susan that this particular section refers to the ability write rules regarding use of common areas and fine for violations to said rules.

I also suspect as others do that another section will give you power to fine for violation of maintenance rules. To that end, I would look to the "Design Guidelines" if you have them.

Yes. I agree, it does sound as though they amended the wrong document.

But for clarification, the CC&Rs don't actually give the BOARD specific powers, anyway, or they shouldn't.

The CC&Rs are the restrictions that run with the land, and any "power" in them is usually granted to all members of the HOA. Not always, but usually.

I'm not sure why the board would put something in the by-laws that should actually be in the CC&Rs, that all residents should have the ability to review and weigh in on.

If they wanted to change something in the by-laws, that would make it easier for them to make amendments to the CC&Rs, they probably should have changed the quorum baseline for membership meetings for the purpose of amending CC&Rs. When our developer transitioned the HOA management over to us, that's one of the first things that was changed in the by-laws. The quorum was changed from something like 75% required to 51% (I think. It may even have been lower, but I don't have the by-laws with me right now). They also changed some wording on what would happen if a quorum were not met for the noticed meeting so that the meeting could reconvene after 3 days (nor more than 10 days later) and a quorum would not be required. Any business approved at that meeting, including amendments, would only require a quorum of those members present.

But it would be very chaotic to put the type of material in the by-laws that should go into the CC&Rs, simply because the CC&Rs run with the land, the by-laws don't.

It would seem to me that a resident could successfully challenge CC&R-type restrictions in the by-laws. Maybe not, but it seems it has the potential to be a huge loophole a resident could drive a [commercial] truck through!

Sorry, I meant to also add:

Anything that is already written in the CCRs, including the design guidelines, are restrictions. The board establishes the rules. That is why, IMO, that section of the bylaws gives the board the power to impose fines for anything that is already in the CCRs and any and all rules they adopt. There is no need to look for the authority to fine anywhere else in the gov. docs.

Michele,

You said: "But for clarification, the CC&Rs don't actually give the BOARD specific powers, anyway, or they shouldn't."

Not quite true. The power to enforce is always in the CCRs, or at least it should be IMO. That where all the restrictions are so it makes sense that that is where the power to enforce would be. However, it can also be in the bylaws but it's usually just stated in a broad sense of the term: ". . .the board of directors have the power and duty to promulgate rules and regulations. . .impose penalties. . ." There is much more detail in the CCR enforcement provisions.

Michele, Right on target! I agree completely! Great posting. I wish others would heed what you have written. Living in covenant communities would be so much better.

OK - so we are all clear that the Board CAN impose fines - BUT the board must pass a policy or rule that explains the fining process and clearly documents the consequences if fines are not paid. And then make sure that all members have a copy of the fine schedule.

SusanW1 and all:

The enforcement process was outlined and put in on the same amendment.

We had our 1st round of hearings. People were cited for various reasons. Now the rules by-laws say that the board can make and publish the rules and regulations. My comment for a lot of the violations was "where is the rule for the violation and when was it published?". No one could answer it. The main answer was it is implied. What can you do but laugh.

There was a statement by the Pres and the mgmt co that there is a clause with a statement referring to maintaining appearance. I said show me. They couldn't find it but the mgmt. co. is supposed to find it and email me today.

It appears to me and some other new members that procedures aren't followed, things are made up as they go along, etc. I do not think that half of the board has even read the docs. Sounds as if they assume their powers by hearing what other HOAs do.

Even though they have the communities interest at heart and are not really demanding anything outrageous, how can you say pay this fine and it will accumulate until you do what I say. If you don't and the accumulated fine reaches $500 dollars we will file a lien and may start foreclosure. Sorry but as much as I agree with what the board is trying to do, if they don't have the authority or haven't communicated to the memebers the rules, I can not go along with it.

KIRKW1,

Exactly. We have 3 new board member who would like to get the community involved with the process to breakdown the two-tier system, but at the same time keep the neighborhood looking good.

I remember reading that our state or county has a mandated repository for such pertinent info. Which I am sure our board has not followed. I do not think that they can produce the minutes of past meetings. In fact I have heard that they can not find some minutes when there is a dispute and the homeowner want to see them.

I received a reply for my request that the mgmt. co. show me the clause where it states anything like the homeowner must maintain the homes appearance (maintenance, upkeep, etc). They said they can't find one.

My suggestion would be to sit down on a weekend and read through the entire set of documents if you can manage it. Just read them front to back. Then start reading with the idea of relating the various clauses together. For instance, when something is in the covenants, look for related items in the by-laws.

Another idea is to highlight the words "must" and "shall" with one color, and "may" with another. The idea being to find what you are required to do and what you can optionally do.

To be honest, it takes a lot of study and you will miss things. I am still finding things in our documents after spending nearly six months reading them. And I missed the little bit about "and Lots" when I read the excerpt from your documents.

Much good advice here from others. I won't bother to repeat anything. Our board created new rules and modified existing covenants as allowed by the "amendments" section of that document. We did it openly through mailing our stated intentions and proposed rules to all homeowners and inviting them to the Board meeting where the rule would be up for approval.

Check out our website for things you can steal:

http://btmhoa.googlepages.com

On the "Governing Documents" page, you will find "Approved Specifications". These were communicated and voted on by the Board all in open meetings.

On the "Architectural Control Committee" page, you will find the documents that that committee uses to manage violations and covenants. You'll find courtesy notice (first notice to homeowner), violation notice (second notice) and other documents. You'll find that the violation notice has many details that allude to the process we follow to ensure we conform to Virginia state code allowing the homeowner to appeal the violation before an assessment (fine) begins.

We have been amazingly successful in getting homes repaired and we have done so without homeowners revolting against the committee or the board. This activity has been working for two years now and I feel safe in saying that the committee has presented violations to about 80% of our homes (including all members of the committee!). Everyone has complied. They may have been upset and sought legal help, we'll never know ... but everyone has complied.