Retract Rules or Void Rules?

I'll try to clearly and as briefly as possible describe the events/actions of past board members which got us where we are today.

1. Our original (and current) documents, by-laws, rules, etc. state that no one can plant, alter, or use common grounds for personal use.

Seven years ago our uninformed/uneducated/misguided Board of Directors passed a rule that people can plant flowers in the common areas outside their front doors. People have gone crazy and planted not only flowers, but bushes and plants, too. But not everyone...so it's a very uneven, inconsistent, and just plain looks crappy.

2. Our original (and current) documents, by-laws, rules, etc., state that no animals or pets are allowed anywhere on the condominium property; nor shall people own pets or animals.

Six years ago that same Board passed a rule allowing people to own 100% indoor pets, less than 15 pounds. The rule was to allow people to own birds, fish, hampsters, etc. As usual people have taken it to the limit and now have cats and dogs (some more than 15 pounds). We've kept it in check by not allowing people to walk their dogs off the property...they must carry them.

Both of these actions should/could be deemed illegal since the Board changed those rules without a vote of the membership. It is required that we have a "passing" vote of 66 & 2/3 % in order for those changes to take place and it must be recorded. The Board did not do that---which is a direct violation of documents and state statutes.

We now have a fairly new owner complaining....and I understand why. There are people (board members included) that want to allow people to walk their dogs on leashes off the property. It has been explained that it will have to be put to a vote of the membership in order to do that.

But just how FAR do we go back??? The complainer wants it put to a vote for people to plant flowers; etc. since it wasn't done correctly in the first place. If we put it to a vote and it doesn't pass, then do we insist that people remove all their plantings???

If we present a legal vote to the owners about the pet rule, do we go all the way back to when pets were not allowed AT ALL??? What if THAT doesn't pass??? Do we tell people they have to take Fido to the Dog Pound and tell them to flush "Gil" down the toilet?

I tried explaining to this individual that we cannot correct ALL of the misdeeds of past Boards and that the last time we tried to get a uniform look for the complex we were met with a recall petition from those who (really did) plant nice things. There are a LOT of people here who have NO IDEA that we are governed by the state and they think we (the board) CAN change things if people ask for them.

Please remember---we area small complex. Only two; two-story buildings. Forty-six units total.

I look forward to your thoughtful responses, advise and ideas. I know the RIGHT, proper, and legal thing to do...but I also know I'll be hung---or flushed with "Gil" if I push some things too aggresively.

Thank you all!!! So much for "brief", right?

But how would that help the present situation? Other than getting a few bucks from an insurance policy at the end of the day Anna is still left holding the bag with the situation as presented. Not to mention I don't think what the previous board did has any significant financial impact that could possibly be claimed against insurance.

Anna - this is one of those situations where it's lose lose no matter what happens. You could try to grandfather all existing violations but the complainant is still right that the original board had no right to authorize them in the first place. Furthermore failure to enforce previous violations is not the same as failure to enforce future ones. That is, it's different that a previous board did not enforce a given rule than to say that the current board will never enforce it going forward. Hopefully your rules have a "no waiver" clause that provides that a failure to enforce previous violations does not negate the future applicability of same.

To truly clear the deck and enforce the rules against a new owner you'd pretty much have to declare that after such and such date these specific violations must be cured regardless of how long they may have been overlooked in the past. You're not making a retroactive declaration. Instead you're establishing enforcement procedures against violations going forward.

There is another option and if enough people are affected you might get support for it. Properly amend your documents. Tell the owners that it has come to the board's attention that the previous rules concerning pets and plantings were not valid and that the decs absolutely prohibit animals and common area plantings. Offer an amendment to essentially codify the invalid rules that the old board made. It goes to a vote. If the membership accepts the amendment the current owners are happy and the complainant doesn't need to live in fear of being a rule breaker. If it fails, the association has no choice but to begin enforcing the CC&Rs as written. At least then the heat is on the general membership and not as much the current board.

Just because the developer made the rules 10 years ago doesn't mean that the association is bound to them forever. IMHO the board should never be in a position of having to enforce a covenant that the requisite majority of owners do not support. But process is process and you have to defend the integrity of the rules as written or properly amend them.

This is exactly the right way to handle this.

The board is an administrative body. The covenants govern. Rules and Regulations are only adopted from existing covenants, either to expand on or clarify them, etc.

The board enforces the covenants. The membership of the association gets to determine what the covenants look like.

If a covenant exists, then the board cannot waive or amend it (outside of any language in the documents that give them that right, if any).

If the majority of the membership (as dictated by the amendment process in your governing documents) does not want certain covenants, or wants others that aren't there, then the governing documents must be amended to reflect that and the board enforces from there.

Wow! Great discussion! I'm absorbing everything you're writing here. Very good advise, so far!

I appreciate EVERYBODY'S comments!

Robert...where are you??? I'd like your take on this!

Donna, too! Mary? You out there?

Ellen? Chime in!

Anyone else? I want to be able to take EVERYONE'S opinions to our next board meeting in January. It's the best way to be prepared...by hearing any and all opinions for a topic discussion.

You all help me out so much!

Yikes

I do not think you can manage a Condo or HOA by popular vote. Yes owners should have input and this should be
provided by the board. I think the idea of turning a new leaf should e considered. But, this will only work if the Board knows their documents. I believe you will find the Board has State authority to manage the complex. They have not done a good job, will they in the future? God knows, but they are flirting with losing their livihood if they screw up bad enough they lose a court appeasrance. I think they are vulnerable right now. You can not administer an association under squeaky wheel logic. Your documents hold weight in court, the board should be on the right side of any devide.

Back to basics folks, you all have no choice. Get out your documents as written, not including rule changes, rule changes only change rules they do not change your documents. Amendments change documents and they must be registered. If you documents say no pets, you can't have pets. I expect this condo has slipped off the track a little at a time over the years........certainly from what has been posted. If at this point you feel you have to change the documents, do it and set new standards.

What to do? Fess up, inform each and every owner your complex is in danger. Don't cast blame, simplp say here is where we are. Inform the owners it is their responsibility to take charge. Your documents will tell you that, the people elect the board to do a job. It is not working so change the board or set a new direction, but no more popularity votes, no more squeaky wheel actions. Either inform the membership this is where you are or call a special meeting for the purpose of the board to set a new vision, in fact at this meeting or in the notification the board should state clearly in writing a new Mission statement. The Board is still the Board and it still falls on them to get the job done. It falls on the members the task of making them do the job or get off. Lead, follow or get out of the way still works.

Will all this work? It better, right now, you all aren't doing much right and you are going further down the hole, so change, use your smarts to get the job done of putting the train back on the track. I'm rambling so will stop, this is all my opinion, although truisms abound to describe your situation, and maybe it is just a matter of going home with the one that took you to the dance. This is surely a owners problem.

Donna you make an excellent point. You see cities do this all the time. Every so many years they form what's called a charter review committee that reviews the city charter and proposes amendments to be put in front of the voters. In most cases a charter review is mandated by the charter itself but there's no reason an HOA couldn't do the same thing. In fact we started on that ...

Although I wasn't around to see the end, my association just turned 10 and there were things in our documents that just didn't make sense. They were clearly there for the convenience of the developer but provided no value to the residents themselves. For example, pickup trucks other than those owned by the developer were prohibited from being parked where they were visible from the street. Anyhow, the board formed a bylaws review committee that consisted of two board members along with five owners who were not board members. This group went over our documents line by line and categorized everything into groups: keep, change/remove, and need more information. They also discussed items that did not exist before but should be considered for addition.

We moved just as they were preparing to hold forums to share what they'd come up with and solicit feedback from the owners. They then got together and finalized the amendments with the help of an owner who was a lawyer who enjoyed donating his services to the association on non-litigation related matters.

I think in the end they came up with 12 or 13 amendments. None of them significantly altered the living structure. The board held an open meeting where each amendment was discussed along with the rationale behind it. Then the ballots were sent out. I never heard the results but I believe there was strong support for all but one that dealt with rentals. People were supportive because they had a hand in crafting the final product.

I agree with Robert's statement that running an HOA by majority is not the way to do it but I would qualify that to say for day-to-day matters. Changing the recorded documents is intentionally left to majority (or whatever percentage) rule. Amendments are voted on by the owners, not the board. There are very few circumstances where the board can amend the documents itself. Otherwise if the board feels strongly for or against a proposed amendment the members are free to speak out but when the roll is called they vote solely as unit owners.

The documents exist to serve and protect the members of the association, not the other way around.

Donna is also right that these are relatively minor issues in and of themselves. However I do think that they could be symptomatic of a structure that's starting to work against the association instead of for it if the violations are as widespread as described. Times change. Developers move on. People's attitudes change. The housing market changes and so on. Forming a committee of people who truly care about the association is a great way to review your documents without opening it up to mob rule.

Exactly. In a past post I mentioned how we had things that were left on the books but fully unenforceable because it was expensive to do just one amendment and get it voted on and recorded. The most prominent examples I have were an outright ban on satellite dishes and a rule that expressly allowed smoking in the clubhouse. The places were built in 1997/1998! There was nowhere near the anti-smoking sentiment there is today but to see a rule from the late 90s that expressly allowed smoking in what is essentially a public building was shocking! There was also a right of first refusal that they were proposing to scratch because it was waived 100% of the time and the president was responsible for responding to all the requests for waiver. The right of first refusal is barely enforceable but it created lots of pointless busy work for the president.

I know one amendment proposed to codified the review process by changing the "successive ten year renewals" clause to add that every ten years the board was to form a committee to review the bylaws and propose changes, much like this committee was doing.

Considering all the unworkable stuff that we had after just ten short years I can only imagine what might be lurking in a place that hasn't done a comprehensive review in 30 or 40!

Dennis,
You and Donna are on the money in general. I would say completely but you mentioned you were going to scratch this right of first refusal.

I can remember (not well) a conversation about this requirement sometime it the past. If I recall right there need to be no official action each time a property changes hands. Most documents (I think) have a disclaimer that states just because the Board doesn't enforce a covenant in the past, there is no restriction about enforcement in the Now.

Then I think (recall) there was conversation that the clause is necessary if you had to dissolve the condominium (in our case) due to say, a disaster. The executor would need this clause to render all the assets of the association into a cash form that would allow for the disbursement of funds. In other words, all property would be transferred into one big pot. With the right of first refusal, you could do this.

I hope I remember right and welcome anyone commenting.

I am considering ALL of your relevant and thoughtful posts!!!

This is exactly the reactive comments and thoughts I was seeking....because they are exactly what we have to consider and may be facing.

Thank you. Thank EVERY ONE of you for your comments!

Anna

Robert you mean we have to go back THAT FAR??? Isn't that something their parents should have explained to them when they were around 10 or 11 years old??? The facts of life, I mean?

Oh man---I have a headache.

Kidding.

Anna,
You deserve a headache. I don't have all that many brain cells left that I can squander them of your association.
Final answer: Line them up and shoot them and declare a Monarchy with you the Queen. Serve them right for messing with Mother Nature.

Dennis;
We have had no problem with FHA because when property was selling the Realtors would find the money somewhere. Now that it isn't selling you got to have twelve million in the bank.

Just kidding to all. And I am sure you know Dennis, have your changes vetted by a good smart Lawyer before you register them. The dissolution of one of these condos due to natural disaster must be a nightmare anyway, and I have never dealt with one nor do I want to, just a matter of discussion. I do know that our covenants regarding this contain a lot of language I don't understand, and if it has to be done the simpler the better, saves money.