DC&Rs and HOAs

Started by TamH • 5 replies • 1425 views

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TamH (California)
Posts: 30

Posted:

This was in this month's newsletter to the homeowners.. Would like input on this. Thanks Tam

"I heard an explanation by someone with a lot of knowledge regarding DC&Rs. This person was at a meeting with an attorney, I believe, where questions were being asked about HOAs. It was explained to them that they were for management only; the DC&Rs do not have to be followed to the letter of the law. One HOA board can interpret them one way and another board another way depending on the needs of the ranch. I do not know if this is true or not but it makes a lot of sense especially with our water situation the way it is".

TimB4 (Tennessee)
Posts: 21,059

Posted:

Varied interpretations by various BOD and/or ARB is the norm (at least in my experience). If all you did was read the posts on this board one would see many interpretations of various issues. This is because of different experiences or knowledge levels.

Although there may be different interpretations, the actions based on those interpretations need to be applied equally. The Board should also keep in mind that different interpretations can lead to a perception of selective enforcement. If this happens, the Board may need to justify their interpretations with other documents or past precedence.

Common sense would have me believe that the interpretation of what was said in the meeting could mean something different as well. I believe that it is possible that the explanation could mean that the BOD could chose to focus on one section of the DC&R and not worry about another section. An example could be that the DC&R says that lawns must be kept green but a water shortage makes this impractical to enforce. However, the BOD still want to enforce personal property being left out.

Tim

MicheleD (Kentucky)
Posts: 4,491

Posted:

Tam, whoever brought the attorney who said that was probably someone who was under a violation and was trying to justify not having to follow the Restrictions.

The attorney is partially correct (different boards can interpret certain ambiguous passages in different ways).

But one thing the attorney is NOT correct is the implication that the Deed Covenants are simply "management" tools. They are not. They are RESTRICTIVE COVENANTS that run with the land and are to be enforced against all lots over which they apply.

If there is a passage that is ambiguous or confusing, MOST covenants allow the board to make a determination and interpretation as to what the passage means, and, once made, THE DECISION IS BINDING ON ALL LOTS UNDER THE CONTROL OF THE DOCUMENTS.

We have homeowner lawyers from time to time try to make the same argument after the homeowner has received a violation.

When we respond that the covenant means X, Y and Z, then the next tactic is for the attorney to haul out the good old "Selective Enforcement" standby.

At which time our attorney sends them a note assuring them that we (the HOA) research each and every complaint of alleged covenant violation and every single violation that is confirmed is enforced. And we have 12 years worth of very detailed records to prove it.

That's generally the point when the Homeowner's attorney backs down and advises his client to remedy the violation.

In the handful of cases where the attorney is frisky (usually it is a friend or relative who is handling the case "for free"), the attorney tries to make that case in court.

The judge never agrees and orders the homeowner to comply.

So, no, Deed Covenants and Restrictions are not "suggestions," or "management generalities," they are binding restrictions with which the title holder must comply.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Tam,

Michelle has explained it quite well but I would like to add one little comment. If the BOD feels it necessary to interpret a particular restriction they should do it by adopting a resolution or a rule. This way their interpretation will be passed on to the next board and if they, in turn, want to change that interpreation they can adopt an amendment to the resolution or rule. This will insure that all h/o's are treated equally.

Now, speaking about interpreting a restriction: The board most likely has the power to not only interpret a restriction but also to adopt new rules with respect to all aspects of the Assn's rights, activities and duties (or whatever your CCRs say); however, the interpretation or the new rule cannot be inconsistent with the restriction being interpreted or with the Declaration.

I hope I haven't confused you!

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By MaryA1 on 11/11/2009 12:23 PM
Tam,

Michelle has explained it quite well but I would like to add one little comment. If the BOD feels it necessary to interpret a particular restriction they should do it by adopting a resolution or a rule. This way their interpretation will be passed on to the next board and if they, in turn, want to change that interpreation they can adopt an amendment to the resolution or rule. This will insure that all h/o's are treated equally.

Mary,

I agree with you 100%. In my opinion, this is why the procedure of resolutions exist. Unfortunately, this doesn't always happen and a new board might not have the background as to why a past board acted one way vs. a different way.

Moral of the story: Create a policy resolution whenever a board is clarifying a gray area. Recording it in minutes doesn't have the same impact as a resolution because very few will go back and actually research past actions in the minutes.

Tim

TamH (California)
Posts: 30

Posted:

Thanks everyone for your input. It sure helped alot.

Tam

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