Should the ACC be able to deny whatever

it feels like? The documents do give the BOD or ACC the right to deny an approval for aestetic/material or other reasons? If the item in question is allowed in the docs. shouldn't they approve it? They have approved other items specifically not allowed in the documents.

The judge did rule at summary judgement that the document couldn't be ammended and the association has some serious problems with denying a reasonable accomodation in relation to the FHA so I guess we'll wait for the trial and see what a jury says.

Never mind their "motives" - what is their defense?

If they have gone this long thru this process, they must be pretty confident.

I think the defense is that the by-laws could be amended with a vote of 2/3's and they thought that included the declaration. Just my guess though.

Charles,

Clear this part up please.---" think the defense is that the by-laws could be amended with a vote of 2/3's and they thought that included the declaration"

If there was a vote to change something in the Bylaws ,and it passed by 2/3rds, it should have been also amended in the declaration.

If whatever wording they amended in the ByLaws is different than the Declaration, then you have a problem as they must NOT conflict with each other. They must be the same.

whoops big fast typing error. Decleration has an amendment section that has its own provision for amendment.

Charles,
Lets make this simpler. What are the provisions to amend the Bylaws and what are they to amend the Declaration. You said that a 2/3rds vote for Bylaws. That should be the same for the Decs? Right?

The decleration could not be amended. The defense of the BOD I believe is that the clause in the by-laws states that the BY-LAWS may be amended with a 2/3 vote and they meant that to include the decleration. The decleration has it's own amendment provisions. They are not the same. The decleration can't be amended for x number of years and those years have not passed yet. I'm sorry I thought people were remembering my previous posts based on Glen's comment.

I have that same blessing (curse) that you have. And that's exactly what it feels like some days. LOL

Charles,

I can't imagine this fence restriction being in both the declaration and the bylaws. Could you please post what it says about fences in both docs? Also, can you post the provision that says the declaration cannot be amended for so many years? My CCRs say: "This declaration shall be effective upon recordation hereof. As amended and supplemented from time to time, this declaration shall continue in full force for a period of 20 years."

Judging from the last post, this sounds like it's a single family (fee-simple) detached single family home or an attached single family (townhome). If so, then why does FHA and reasonable accomodation even come into play? I thought that FHA and reasonable accomodation only was applicable with Condominiums and Rentals, etc. What form of ownership is involved here?

Charles,

I thought you were saying the fence restrictions were contained in both the declaration and the bylaws. My mistake! It appears you should not be denied building a fence as long as it is made of maint-free material. The way I read the restriction, it can be any maint-free material not just the ones mentioned.

Regarding amending the declaration. My interpretation is the declaration amendment clause does NOT state it cannot be amended during the first 15-yr period. That is only the initial term of the declaration. And, surely there's more to that article as it should be stated what the requirements for an amendment are. Usually the term and amendments are two separate clauses.

Each document has specific requirements for amending. One has nothing to do with the other except that the amendment of one cannot be in conflict with the provisions of the other. Frankly I don't know what amending the bylaws has to do with your fence issue. Also I don't know why you mention the FDA disability requirements -- what does having a disability have to do with having a fence? Sorry, I don't recall everything that was discussed in your earlier thread.

That is the whole section on amendments in the declaration. The judge denied summasy judgement for the HOA regarding the dismisal and changing of the declaration.

The HOA thought they could use the by-law amendment provision and change the declaration. They didn't even file with the county what they thought they changed if they could have changed it.

I meant to mention FHA not FDA and the denial of a reasonable accomadation with regard to the asking for and being denied a vinyl coated chain link fence. The HOA's response is they don't allow that type of material any longer due to the change in the by-law's.

The following is a piece of a lawsuit in Michigan with a very similar amendment clause in their declaration that the judge ruled couldn't be amended for the 25 year term. The case goes on to state that the initial term is to let the HO's of a new development get settled and not have changes and the neighborhood changes or something like that.

Defendant maintains that this provision for change must operate during the initial twenty-fiveyear period, but that interpretation is in conflict with the evident intent of the restrictor. If defendant’s interpretation is correct, then the restrictive covenants provide no stability to the existing lot owners in the subdivision or to prospective buyers. The covenants would be subject to change almost daily as new owners purchased lots (or buyers purchased existing homes) and created potential new majorities. As the restrictor evidently recognized, the time during which this problem would be most acute would be the period of initial development. Therefore, paragraph twenty-four clearly provides that changes may not be made during the initial twenty-five years. The next phrase of paragraph twenty-four then indicates that after the twenty-five-year period expires, the restrictions will automatically be carried forward unless a majority of the owners of lots agree to changes. Thus, the ability to change or modify the restrictions was intended by the restrictor to arise only after the subdivision had been given an opportunity to be settled and all, or most, of the lots had been sold and developed.

Paragraph twenty-four of the original Building and Use Restrictions of Lake Isabella South reads as follows:
These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of twenty-five (25) years from the date these covenants are recorded, after which time said covenants shall be automatically extended for successive periods of ten years unless an instrument signed by a majority of the owners of the lots has been recorded, agreeing to change said covenants in whole or in part. The terms of this section do not apply to section thirty-three (33), which is in perpetuity.

Charles,

It seems like you need a lesson in HOA documents and what their purposes are.

The Declaration is the restrictions that run with the land, the units and what is expected from the membership.(This is where parcel usage is including what is allowed or not allowed such as fences, no above ground pools, parking of vehicles,enforcement, out buildings, etc.) Also known as Covenants and Restrictions.

The Articles of Inc are what the purpose of the association and what it's governing rules are such as Board members and their purpose. Registration with your State as a Non Profit Corp.

The Bylaws are the operations of the association, following what the Declaration and the Articles require, such as meetings, quorums, percentages for voting, standing committees(architectural) The Board can fine tune these to clarify what the Dec.s says, such as fining amounts, how to enforce, THEY MAY NOT CONFLICT WITH THE DECLARATIONS.

Now IF your Dec or Bylaws has allowance for an ACC committee, then that committee must have a set of guidelines on which they make decisions for applications or changes to parcel use. That may include paint color, material type for fencing, landscape requirements, etc. I am assuming that there are none otherwise the fence material would be spelled out and the Board would not have approved a maaterial other than what the Dec. requires.

The term "Corporation exhistence is perpetual" is in almost every set of documents so that means nothing for this discussion.

Because the BOD has no idea what they are doing. LOL.

Thanks Mary,

I was starting to get buzzy headed trying to sort this out. And then we have the Judge, who IMHO, must have gone to the Judges school of lower learning. Since when can you not amend Declarations but you can amend Bylaws? They cannot read to mean differently so why amend one without the other. All this over a fence.

Because Charles has not given us enough info on the fence, other than the material was not approved, you are right. This does not fit into a FDA complaint .

Well Judge Judy/Glen,

Thanks for following this and for the good memory. Too bad that you did not make the original decision on this as the BOD did make an erronious call IMHO. The vinyl chain link was allowed but at a lower height and then the Board wants to use a different fence material instead of just going with a few more inches in height? Kinda dumb if you ask me but then again, the amendments are screwed up also so what else would there be.