Restrictions Vs Rules/regulations

I have another length post which this topic includes, but I wanted to narrow the focus of the discussion and get input on other site members defitions for the follow:

In your opinion, can you define and give example of the difference between a restriction which are typically covered in the CCR/Declaration and require community votes (assume docs require 67% approval for adds/mods), versus a Rule/Regulation which the board has sole discretion?

Thanks

Gerry

Thanks Brucef1, the roads are still "common" to some degree or public roads. Do you have any examples that might impact the homeowners property? I believe our boards have confused rules/regulations with restrictions and intermixed the two.

Susanw1,

I'm trying to get some type of consistent opinion of what is the difference between a rule and when it might cross the line and become a restriction in a general sense. This is just trying to get a sense about how others perceived the bounder or differences. But, to provide some examples of our docs here's a few and some my not be the best examples.

First, a document was "passed by the board" when over 1/3 of the development was still underconstruction and the board was not the declarant. The doc was called "architectural guidelines and standards", again not vote by the community. In my opinion, must of the contents of the documents are rules/reg but some are restrictions which should have been voted on. I will provide the topic (both examples), identify either in the original ccrs or not, and my opinion.

Antennas/Satellite Dishes - Covered in originally CCR. In my opinion, is a mod to a restriction that should have been voted on.

Litter Removal from property - Agree is a rule/regulation and not a restricton. No vote required.

Lawn and Fertilization - Agree is a rule/regulation and not a restriction, no vote required.

Fences - covered in original CCR/delaration which only allowed split rail, no "guideline" allows different types. I consider a change to a restriction, should have been voted on.

Rec/Play equipment in yards - No in original ccr's, new guidelines define construction type (wood), although not specific anywhere board has prohibited "rainbow" canopies". I consider not a rule/reg but a restriction which should have been voted on.

Solar panel - not in original ccrs, these "guidelines" prohibit. I consider not a rule/reg but a restriction which should have been voted on.

Exterior Decorative Objects - (note this one has a majority of the community upset). The specific wording here is :

"Exterior decorative objects such as, but not limited to, wagon wheels, stumps, driftwood piles, and freestanding poles (including flagpole) of all types are prohibited in front of the house.

The front entry and garage area may have :

* up to a maximum of a dozen flowerpots
* Up to a maximum of two(2) statues. Status shall be tasteful and shall not exceed 32" in height and width. Location in front yard is restricted to flower beds (not in lawn).
* A maximum of 1 fountain. "

A consider this a restriction and not a rule and should have been voted on. This one also causes the most conflict in the neigborhood because of a number of reasons. Keep in mind that some of the homeowners had signed the agreements with the builder based on the ccrs, this other document did not exist, then this was "adopted" after the people moved in. A few examples of conflict are, a few neighbors have governor drives (semi-circle) and wanted to install fountains in the grass/lawn area within the drive. They were denied for two reasons, first, they could not have a fountain larger than 32" high, and secondly because they could not install in the lawn area, restricted to flower bed. Again, none of this was in the CCRs. Also, another homeowner had an expensive artificial tree next to his front door (on step) and was told to remove because it was higher than 32". I don't see any difference between an artificial tree in base being higher than 32" and a real tree in a base/urin being higher than 32".

I really didn't want to get into to much specifics and was just looking for general comments, but since you asked.

I hope this helps.

Gerry

Thanks DonnaS, I believe your statements are in support of my position and that's for stating your opinion about the the function of the rules especially not to conflict nor lessen the ccrs. That is the critical distinct, although some would argue enhance them could mean adding new ones.

Let me try and put my general position another way. The government can not grant rights (ie god given), they can only restrict them. In the sense of the CCRs, the CCRs are used to explicitly create restrictions, if they are not in the CCRs they do not exist, unless the CCR are amended via the community approving to add a new restriction.

Rules are different, rules/req regarding general behavior, use of common areas, potential fees for violation of the rules, etc, but those do not impose "restrictions" on the individual's property.

very general and Short simplicist summary.

Thanks again.

Gerry

Gerry - your example of the fence situation:
"Fences - covered in original CCR/delaration which only allowed split rail, no "guideline" allows different types. I consider a change to a restriction, should have been voted on."

This shows why CCRs should not try to be so "specifically limiting" and expect the restrictions to pass the "test of time." We have had discussions here about CCRs that try to cover EVERY possible situation, only to miss a 2008 exception.

Better that the CCRS say that "the style of fences must be approved by the ARC or the Board" - then make sure that the Committee or the Board has strong rules and regulations in place. The input of the Members can be considered, but in reality, it is not mass rule and the board or Committee has to make the most current determiniation.

How else will CCRs pass the test of time?

RogerB,

Your post bothers me somewhat which also seems to conflict with some of the other comments. But in general, the CCRs is, as someone else comment, the bidding agreement which dictates the restrictions. In the CCRs, it's also clear that any additions, mods, deletions, to the CCRs need to be approved by xx%. So this is where I'm having a fundamental difficulty understanding how any board can claim that a restriction is a rules/regulation by-passing the voting.

I agree with DonnaS' post that appears to confirm that many of those examples should have been voted on.

The primary purpose of the board (maintenance org) is to managing the common areas, enforce the restrictions, and adopt rule/regulations for the common areas and general conduct in the community.

To Susanw1's post, yes it is democratic rule which means the community members still control the ultimate impact/direction the community wants to go. At that is exactly how the CCRs stand up to the test by the community making the decisions which direction and restrictions they want to continue with, add or modify.

That's difficult unless you want me to post the entire 10 page doc. This is what is causing the problem. Some posts say, rules and reg relate to clarifying or enhancing what is in the CCRs already, or rules/reqs about the use of the common areas. If the docs say that any changes to the CCRs need approval by 67% of the ccommunity, using the rules/req to introduce new restrictions nullities the entire reason to have 67% approval.

This is what brings me back to the original question. When does a rule/regulation cross the line and become a change to CCRs requiring a vote. I had provided some examples above, and a few posts indicate some should have been voted on.

This is the crust of the problem, it's my opinion that anything that impacts the homeowners' property directly is a restriction and therefore any change requires a vote by the entire community, the rules/reg are meant to manage the common areas and the members behavior (ie no loud noise after 10 pm, or speed limits in the neighborhood).

I've read some other docs on this web-site (Zen and the art of rule making, 3Rs of homeowners associations, and Good rules making from Community E). All of these really seem to stick to rules/regs regarding common areas use, etc.

In fact in the Zen article, it mentioned, "If the Board is doing their job well, they set a vision according to the views of the community, not just the few members who serve on the Board. ....." And from the 3R's document,
"Rules and Regulations should be limited to addressing rules of conduct in the common or limited common area property. Appropriate topics include:
• Hours of operation
• Restrictions (like pool rules)
• Limitation on guest use. "

That's the basic question, where is the line?

BruceF1,

Thanks, I understand what you are saying but there is still a line for the outside, and just because xx people on the board my not personally like something or what to limit something the majority of the community may not, consequently it is still not going with the direction of the community.

Take the examples posted earlier, and the major ones which are causing most of the problems in the neighbor, that being the number of "lawn statues" which the board has included 5" (inch) figurene, or prohibit fountains in the main lawn area, or a overall height limitation of 32" (why 32"). These have been the biggest issues.

As SusanW appeared to agree, a lot of these do appear to be restrictions, and should have been voted on.

So here's another question, if the board has implemented a CCR which the majority of the community is not in agreement with, I would guess that the community can override with a resolution? Agree or not?

Gerry,

OK,I don't expect you to post the whole CCR document. However, please answer the question: Do your CCRs have an article entitled "architectural control"? If so, what exactly does it state? As I mentioned earlier, many assn CCRs state the board may appoint an architectural committee and they, in turn, may adopt a set of guidelines and/or rules by which they operate. Those rules may contain architectural restrictions on the members' properties. Adoption of these architectural rules do not require a vote of the members and are NOT deemed an amendment to the CCRs. They are additional rules that the members must abide by and they have the same enforcement requirements as the CCRs. The new "rule" about the lawn statutes which you have mention, IMO, may be an architecutral rule and not an amendmentment to the CCRs.

As I said earlier, because these rules do not require a vote of the members, oftentimes they are the root of many of the problems in an HOA. This is evidenced by the fact that you mention many members of your assn are quite unhappy about these new "rules".

1. Ornaments in the lawn. There can be several reasons for limiting these. One would be if the association pays to mow the lawn. One fountain in the center of one lawn may not be an issue, but when there are several fountains on several lawns it becomes an issue. They either have to be moved to mow, or they have to be trimmed around, all at extra cost to the association. There can be other reasons too.

2. Number of ornaments. What number would you suggest? How about 5? Maybe 10? Or perhaps it should be 50 or 100? You've heard the old saying, "give an inch, take a mile." Left to their own, some people will do outrageous things. Things that perhaps you won't like.

3. Height of ornaments. Again, what would you suggest? Three feet? Five feet? Ten feet? The sky's the limit? You need to pick some number.

And, if it is indeed the case that the majority of homeowners don't agree with a rule or a regulation, it may be possible for them to call a special meeting in accordance with their documents and to draft and pass the necessary amendments to the CCRs. If they can't do that, then it may be the case that there really isn't a majority (or a sufficient majority) of the homeowners that feel that way.

Look it's really not part of this post but let me provide some details on other things that have or have not occurred.

For example:

- minutes of board meetings are not provided even upon request.
- In fact, the current secretary indicated he only have the last 8 months for when he was secretary, the other months (for this year) were never turned over to him by the ex-president who resigned. And, the prior board never turned over any mintues from their meetings.
- No attenance is taken at any community meeting, including the annual meeting.
- The last two years, no complete year of financials have ever been reviewed, only current month once in a while
- In fact, the county code which governs the maintenance corp requires that the budget for the upcoming year is presented at the annual meeting and voted on for approval. No review, no voting.
- $20K was just spent on the installation of 2 new (not a replacement of any existing item) fountains in the pond. No vote or approval. Again, not a maintenance item.

Just some examples.

Gerry-
you said "In fact, the county code which governs the maintenance corp requires that the budget for the upcoming year is presented at the annual meeting and voted on for approval."

County jurisdiction over HOA affairs?

Please explain.

Sorry I forgot who asked for some of the wording in the docs, here are some excerpts. attached

Was out of town traveling so couldn't reply. Additional information I found out, after some additional research and reviewing with other local maintenance corp presidents.

First, the law indicates that all board meeting are open meetings. Notice of the location, time and agenda must be published for anyone to attend if they wish.

The minutes must be documented and made available upon request.

In reviewing the rules/reg question, the by-laws and articles define rules/regulations as "relating to the common areas".

In speaking with other local board presidents, all indicated rules/regs can not create new restrictions, only clarify existing ones. If the restriction did not exist in the original declarations or convenants they must be voted on and passed by the community.