Defintions of words in Declarations

Started by LindaC3 • 22 replies • 1923 views

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LindaC3 (Florida)
Posts: 526

Posted:

Gosh I love this forum and am ssssoooo happy it exists..Thank you all...Now for a brain picking session.
If a recorded Declaration has defintions of words ie: family,common area,residential lots,temporary homes defined as a camper ,rv ,trailer etc intended for human occupancy......Can a Board adopt a RULE to change the defintion and insert new verbage or does the declaration have to be changed to allow for an expanded defintion which in essence totally changes the oringinal definintion in the declaration? I hope this doesn't sound too confusing ,but my gut tells me that you wouldn't be allowed to change,alter,or expand on a defintion by adopting a RULE without changing the declaration. All input is greatly appreciated,and yes I am in Florida ........thanks bunches LindaC

BrianB (California)
Posts: 2,820

Posted:

as far as I know, and I don't know much, ANY change to your bylaws or CC&R's must be done according to those bylaws...

If they say that changes must be made with a 75% vote, on a rainy day in February, then that's the rule. If they say they can be changed by the board, then that's the rule. The procedure and only legal process to change things in your codes is in the by-laws (unless state laws mandate differently).

One caveat: whatever you do, if you change something in the codes, you MUST make sure that all future buyers get a copy of the correct/right version. This usually means recording the new version with the county, having copies available to give to buyers, reminding homeowners of the proper versions, etc.. You may even want to prepare a packet for potential owners, or put the rules on a website for download by realtors, etc..

LindaC3 (Florida)
Posts: 526

Posted:

BrianB-- Our Bylaws and Declarations are very clear that any amendment or change to the Dec's shall be by a 2/3 vote of the members.The question I am posing is Can a BOARD vote to change the defiinition of a word in a Declaration by adopting a RULE to change it-----Thanks LindaC

BrianB (California)
Posts: 2,820

Posted:

i think not... again, my opinion, but changing the meaning of a word in the definitions is definately a big change, and thus, a change requiring 2/3 vote.

For instance, you might try to change "should" to "must", which would completely alter many rules. Or, change the definition of a recreational vehicle from a separate trailer to a small truck with camper shell.. which would be major rule changes.

I think changing definitions would be a major change, and require 2/3 vote of the owners.

RogerB (Colorado)
Posts: 5,067

Posted:

Linda, to change the deinition of a word in a Declaration it requires amending the Declaration. To amend the Declaration requires whatever is specified in your Declaration or state statute if less. You stated that amending your Declaration requires a 2/3 vote. That would be 2/3 of all unit owners approving.

Nevertheless, a Rule can be passed to further clarify or explain a definition. Rules can be approved either by the Board or the members voting at a meeting depending on what the

LindaC3 (Florida)
Posts: 526

Posted:

Roger: Wording in Declaration:
(i) "Temporary Residence" means a mobile residence including,witout limitation,a mobile home,
a trailer intended for human occupancy,a motor home or a camper.

Wording in the Rule:
19.1 A "recreational vehicle" is a motor home,camper,trailer OR SIMILAR VEHICLE ON WHEELS INTENDED SOLELY FOR HUMAN OCCUPANCY WHICH HAS TOILET FACILTIES.

To me this is a MAJOR change to the defintion that is addressed in our Declaration and I feel that the Board MAY NOT alter,expand,insert new verbage that would in essence create a new "defintion" that is not addressed in the Declaration. The Rule violates ,in my opinion,the Declaration and if would require a 2/3 vote of all the members to adopt,approve or accept this NEW VERBAGE /DEFINITION that the Board has already passed at their last meeting. The passing of this NEW RULE allows for people who own horse/camper combo trailers (which by defintion and DESIGN) is intended for human occupancy.The horses can't cook food or sleep on the bed in the camper,and you can use this camper without the horses being along for the ride,to park their camper on the property- but if you own a MOTOR HOME you can't ... There is some bias here and preferrential treatment.....I believe that all rules need to be written to be fair and applicable and not written under a legalistic ruse to allow basically one thing for one group but not for the other by adopting a DEFINITION RULE... Your opinion as always is greatly appreciated Thanking you in advance LindaC

BrianB (California)
Posts: 2,820

Posted:

In essence, to change a definition is major effort. To clarify is something a board can do in a meeting, and is simple.

I would need to better understand your example before I could say which was happening in your situation, because the two items you provided do not mean anything to me out of context. One talks about temporary residences, the other seeks to define recreational vehicles. That's an apple and an orange, to me at this point.

the first rule doesn't even mention recreational vehicle, so i am lost as to the examples. sorry.

LindaC3 (Florida)
Posts: 526

Posted:

Brian--- Okay I understand where you are headed---Let's see if I can explain what's going on here...may be lengthy so bear with me please.

In years past we have always relied on the Declarations for substance and confirmation of what you can and cannot do with regards to use /restrictions of use on your personal residential lot.Our Declaration has a specific defintition of temporary residences.(see previous post)

In addition our Declaration states in Article 7 section 6 No temporary residence is permitted on a residential lot EXCEPT as may be permitted by a rule of general application and which shall be subject to applicable laws and ordinances.(see previous post for defintion of temp res)

Fast forward- One person in the 299 member association is offended by having to look at the RV parked
on this guys acreage.($+ - 300,000.00 rv) For the 12 years that the man has lived here he has always had an RV parked by his home....Never has been a bone of contention in the past.And for general info we are a 3500 acre private hunting and recreational facility.Very Unique...So ,she filed a complaint that the rv isnt allowed to be parked there in violation of declaration. management brought the complaint before the board and the board referred it to a commitee to see how we could adopt a RULE to allow "temp residences" as defined by declaration to be parked/and or stored on an occupied residential lot with out having to be wholly enclosed in a building.The committee recommended that screening with use of plants/trees could accomplish that....It went back and forth back and forth and back and forth.So in Nov 2005 by vote of the board they allowed for rv's to be parked on lot w/ screening.Rule will go into effect Jan 01,2006. Persons currently storing rvs MAY present a landscape plan for presentation to the board.So people did landsape plans for presentation.They never got to present because discussion ensued at the meeting and it again was referred back to commitee...HAVE I LOST YA YET?Fast forward...backand forth again a couple more times.The one board member who sits on the Equestrian Commitee felt that camper/horse trailers would be permitted on lots but RVs would not.So the RV people felt that wasn't fair because they felt it fell under the definition of temp.residence per declaration..So, much conversation, heated at times took place...once again backand forth..... So the the board wrote a NEW RULE altering ( in my opinion) the meaning and the "spirit" of the definition in the decs to circumvent and allow the horse people to keep their campers but not rv people.(see previuos post as to rule word change definiton)Florida State has a clear defintion as to what a Recreational Vehicle is and NO WHERE does it state ON WHEELS INTENDED SOLEY FOR HUMAN OCCUPANCY WHICH HAS TOILET FACILITIES..So I am back to the oringinal question--- I believe that the Board MAY NOT adopt a rule changing or altering defintion to suit a specific purpose with approval of the members.I knwo this alot to comprehend but I have given you the condensed version of what is taking place...Your comments are so appreciated Thanks Brian...Linda c

BrianB (California)
Posts: 2,820

Posted:

okay, see if i got it.

Your codes say no temporary residences allowed. they define temporary residences to include "(a) mobile home,a trailer intended for human occupancy,a motor home or a camper."

Thus, none of these items are allowed on the property. I would say that the RV parked in the back of the fence for 12 years is a clear violation of this rule, period. It would be either a motor home, camper, or trailer intended for human occupancy, one of the three by any definition. One way around this is to prove that it was not hooked up to power, sewer, etc., and thus was not ever a residence (ie, merely stored there, not used). In general, a temporary residence clause is designed to keep people from LIVING in an alternative home, not simply parking one there. However, your rule doesn't say that, it says none allowed.

Now, in order to allow such RV's to be placed/parked, and/or to allow horse trailers to be placed/parked, they board has written a rule in an attempt to comply with article 7 section 6, a rule of general application.

I would say that the board can indeed write a new rule to allow horse trailers to be placed. It would be the exception to the code that says no trailers intended for human occupancy, and is allowable under article 7 section 6.

However, the wording in this rule: "19.1 A "recreational vehicle" is a motor home,camper,trailer OR SIMILAR VEHICLE ON WHEELS INTENDED SOLELY FOR HUMAN OCCUPANCY WHICH HAS TOILET FACILTIES." tells me nothing except the definition of an RV. I assume section 19 says something either allowing RV's or banning RV's.

Are you saying that section 19.1 allows a horse trailer, but disallows an RV? If so, I would disagree... as written, that definition includes horse trailers... they are trailers, and trailers are defined in that section as recreational vehicles. So, if RV's are banned, then horse trailers are RV's and banned too.

According to that, an RV IS: a motor home, a camper, a trailer, OR a similar vehicle with wheels intended solely... Each of the commas separates a category defined as an RV.

another loophole in that definition is the word "solely"... motor homes are not solely designed for occupancy. they are designed for driving too, which means they are not covered by that definition.

LindaC3 (Florida)
Posts: 526

Posted:

BrianB- Okay I get the gist of where you are going with the RULE OF GENERAL APPLICATION- Cool.But our codes of the county where we live ALLOW for Rv's to be parked/stored on acreage W/O being wholly enclosed in a building.The board says they have to be WHOLLY enclosed if it is a "temporary home".My feeling is that Rule 19.1 A is a change to defintition already addressed in the Declarations and thus not allowed.My question to the Board will be under what authority,law or statute permits them to alter,amend or expand a defintion of a recreational vehicle which is clearly defined in FSS.320.01 I feel it is still a ruse to allow horse/camper combos to be parked w/o enclosure and not allow rv's by changing and altering a STATE DEFINTION of a recreational vehicle. I love that you caught the "solely" word....No one here has......Sometimes the most obvious is that which we cannot see......Thanks again and as always comments are so appreciated.Nice to have another set of EYES to help me see. My mission is to see this all the way thru to the end......I believe in rules and abiding by them BUT only when the rule is fair and equitable in it's application.....LindaC

RogerB (Colorado)
Posts: 5,067

Posted:

Posted By LindaC3 on 10/20/2006 8:31 AM
Roger: Wording in Declaration:
(i) "Temporary Residence" means a mobile residence including,witout limitation, a mobile home, a trailer intended for human occupancy, a motor home or a camper.
Wording in the Rule:
19.1 A "recreational vehicle" is a motor home,camper,trailer OR SIMILAR VEHICLE ON WHEELS INTENDED SOLELY FOR HUMAN OCCUPANCY WHICH HAS TOILET FACILTIES.

To me this is a MAJOR change to the defintion

I disagree, no change in the CC&Rs was made. Furthermore, "temporary residence" is not addressed in Rule 19.1; it only tries to define a recreational vehicle. It appears to me your HOA may be confusing a temporary residence with storage of a recreational vehicle. As long as an RV or horse trailer is just being stored it is not being used as a temporary residence.

If I understand correctly, you think the Board approved Rule 19.1 would require RVs, but not horse trailers, to be enclosed. Such a rule is bad; it does not pass the requirement of being reasonable.

ClaudeV (Florida)
Posts: 86

Posted:

If I may,

Sounds to me as if someone has a horse trailer that happens to be a delux model that has a small human living area in it. (That is an exspensive trailer!)

Others have RV Motorhomes/campers.

One or the other cannot have what they want and the motorhome folks are saying that the horse trailer IS a motorhome because it has human quarters in it as well.

A horse trailer is NOT a "motorhome" by any stretch of the imagination. It could be more correctly called a "camper".

The SOLE PURPOSE of the horse trailer is NOT to house humans, but to transport horses with a temporary human accomodation. It is reasonable to think that someone wouldn't haul a horse trailer to a campground just to camp in it. The function is to stay with the horses at shows etc.

Someone is being very nit picky because they feel slighted or singled out and the "war of the word definitions" is on to try and justify a position.

Is that about right? ;-)

LindaC3 (Florida)
Posts: 526

Posted:

RogerB- Thank you for your post and the --does not pass the requirement of being reasonable- I never thought of that- Is there a document or something in writing that I may show to our board stating such ? That's why the group thing is a good thing....But can you clarify something,,,Can a board change the defintion of a vehicle that is clearly defined by Statute in Florida just to suit their needs or the wants of a select few to pass this rule? Thanks LindaC

ClaudeV (Florida)
Posts: 86

Posted:

Linda,

MY take on this is just get the print out from the state statute that describes your vehicle. Present it to your BOD and ask them that they get the state to change the definition to what THEY want and you'll gladly comply! (cynical laughing face here.)

The short answer: NO. :-)

Roger? You online today?

LindaC3 (Florida)
Posts: 526

Posted:

Claude- thank you for your post---- The rv people are not by any stretch of the imagination calling horse/camper combos motorhomes.The first rule included those horse/camper combos.Then the horse people started raising cane and cried foul....So then they changed the verbage to SOLELY INTENDED FOR HUMAN OCCUPANCY eliminating the horse/camper combo people from having to wholly enclose the thing..So now RV people are crying Foul .....and thus the saga continues....And for your general info I am not siding with one or other and have friends who do in fact use their horse/camper unit without bringing the horses to the campgrounds instead use the area assigned for where the horses would ride and load all their camping stuff ,ie bikes,rafts etc.......So to me that's a multi use CAMPER and not permitted by the Declaration..........HOA'S are so much fun....Thanks LindaC

LindaC3 (Florida)
Posts: 526

Posted:

ClaudeV-- THANKS FOR THE SUNDAY LAUGH........At last someone who understands where i am heading with this......I have felt all along that they CAN"T change a State Vehicle Defintion just to suit their needs.... So as I help my next dr neighbors with their appeal for the violation they have been cited for and paying fines daily---the first statement should read ::: By defintion according to F.S.S.320 no violation exists thus no fine may be imposed....Then attach the FSS and watch the reaction of the board........ IMAGE OF BIG HAPPY FACE :>)What say you ClaudeV Thanks again LindaC

ClaudeV (Florida)
Posts: 86

Posted:

Linda,
Sounds like a plan to me! :-D

And yes, HOA's are sooooo much fun! About as much as my last tooth extraction! (LOL)

BTW: Our BOD Prez and I had a talk this evening and I informed them that I was going to motion at the October 30th meeting that we hire a lake maintenance company and a management company. Fees will have to be raised approximately $10 to $15 per month to cover both. I'm waiting for THAT "bomb" to go off at the meeting! (LOL)
I'll post about the results/reactions after Oct 30th!

Happy Halloween! he...he...he

LindaC3 (Florida)
Posts: 526

Posted:

Claude- I plan on making sure the defib machine we have out here is at our meeting as I know these board members are sure to have cardiac arrest.......They don't much care for the "younger" folks moving out here and upsetting the apple cart.They feel becuase they are attorneys that the "average" Linda doesn't have a conceptual clue as to how to read much less comprehend a legal document..Well surprise surprise surprise....I refused 10 years ago to give my vote to the First Stated and Amended Declarations because of a statement - It said that we should all be of the same like mind and comportment..I don't think so....... I will also keep you informed as this saga continues to unfold....It should be MOST INTERESTING INDEED....Happy Holloweenie Linda C

ClaudeV (Florida)
Posts: 86

Posted:

Linda,

OH...PLEASE DO! (LOL)

OUR meeting this month is on Halloween. Too bad YOURS isn't on Halloween...THEN you could dress up as a WITCH and attend....THAT wold add to the "atmosphere"...wouldn't you say??? ROFLMAO!!!!!!!

LindaC3 (Florida)
Posts: 526

Posted:

THEN you could dress up as a WITCH and attend.... I planned on dressing in costume anyways- and if they ask what I am I'll just tell I'm attorney-Seriously- I have a black t shirt from joes crab in san diego.On the front in big white letters it says GOT CRABS ? and on the back it says we do- joes crab shack..... Should just about make them turn their heads in total disgust.............Your meeting is before ours so ya gotta let me know what happens.we have taken to protecting ourselves and by nitification to the MADAME PRESIDENT per the bylaws we are video taping all further meetings .......Minutes don't always jive with what we know we HEARD- if ya know what I mean.........LindaC

ClaudeV (Florida)
Posts: 86

Posted:

We voice tape AND video tape w/voice ALL of our meetings, BOD, general assembly, committee...whatever. They ALL get taped. We have already cleared up several "misunderstandings" and a few outright LIES using the tapes!
It's perfectly legal as long as everyone KNOWS that it's being taped. If they don't want to be taped and they aren't in a majority that feels that way, invite them to leave.

LindaC3 (Florida)
Posts: 526

Posted:

Claude- It's sad that in todays world we have to resort to such tactics- We do it for the same reasons you do- CLARIFICATION....Real words tell no lie.....I have the appeal letter written for my neighbors and the board is going to croak when they read it- i also went to a website and www.equispririt and printed pages and pictures of a horse/camper combo for presentation.......Only to prove a point....about the SOLELY for human occupancy thing.....The appeal thing is next week - will let you know what happens there- then the board meeting next month will be the icing on the cake when the appeals commitee makes it's recomendation.......So looking forward to it. Well off to another mission to fill the time between meetings. Verifying signatures for the amended decs back in 1998- have found MANY discrepenacies....should prove to be just as controversial as the rv vs. horse trailer thing.....Have a good one LindaC

LindaC3 (Florida)
Posts: 526

Posted:

Claude-- Update on Rv thing--- In our research we actually found a horse/camper combo that actually is 2/3 human occupancy 1/3 horse placement-- $60,000.00 ...If I chose to buy one-- which I wouldn't,dont need one..the only horse i ride would be a harley-I would by this rule be able to have it on my property without having to have it totally enclosed..On that note - Wholly enclosed...rule 19.7 If i choose to spend $50,000.00 to build a 44 ft x 40 ft -16 ft high building to wholly enclose my RV I can only STORE the RV "TEMPORARILY" for one year - then the next year I would have to seek board approval AGAIN to keep the RV in my building......So if that board is more anal than the previous board they could basically(and I hate that word) tell me NOPE gotta move it..... So like Roger says- Fails the requirement of being reasonable.......Any input ? Thanks LindaC

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