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Subject: Can the rules and regulations be stricter than the decleration?

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CharlesH9
(Michigan)

Posts:80

06/20/2008 5:56 AM
If the decleration allows certain materials to be used on exterior work, can the rules and regulations take out that material or change it?

BradP
(Kansas)

Posts:1742

06/20/2008 6:07 AM
you would have to go through the process to change the declaration...you can not just arbitrarily make rules that are stricter than the declaration.

GeraldT4

Posts:932

06/20/2008 6:11 AM
CharlesH9 - Good question. If the materials specified were discovered to be inferior, or hazardous than they'd have to change. So, in that instance, yes they can be amended due to the fact that the association must protect the general welfare and safety of the membership. Please provide more specifics, what change in materials is being contemplated. The process of amending the declaration should be spelled out in the declaration, by-laws, or somewhere in the governing documents. A membership vote may be required.

DonnaS
(Tennessee)

Posts:2834

06/20/2008 8:02 AM
Charles, For instance, if the declaration says concrete or stucco, then brick would not be allowed. Or if it says 50% must be wood, then all brick or all wood would not be allowed. You certainly can change the declaration by a vote of the membership thru your "amendment" process. Look in your Bylaws for how to do that. You will need a positive vote by a certain amount or percentage of the members per a vote.

MaryA1
(Arizona)

Posts:2243

06/20/2008 10:05 AM
Charles, A rule can only interpret the CCR restriction; it cannot change it. A rule cannot override or change the meaning of a CCR restriction.

KirkW1
(Texas)

Posts:1145

06/20/2008 1:20 PM
Pay close attention to what section you are in. In our neighborhood, most of the rules on what kind of materials are allowed are found in the design guidelines. That allows us to be much more flexibility in responding to building trends. While I wasn't as appreciative of our developer when they were in control, I am now seeing how they helped us to become our own neighborhood. They left us in great financial shape. They also left rules on materials that can be used such that we could change them now that we are self governed. Yet they put some protections that are not likely to be changed in the CC&Rs. One thing is for sure, it is hard to come up with a great set of governing documents.

CharlesH9
(Michigan)

Posts:80

06/21/2008 4:19 AM
The deleration says maintenance free material i.e. and gives a few specific examples. The BOD has dropped one of the examples after a vote to change the decleration. The decleration provision on ammendments clearly states they can't change it for several years, though the by-laws state they (the by-laws) can be changed with a 2/3 majority. The "new" ammendment was never filed with the county, just changed on the website 8-9 months after the supposed change. The other ammendment they supposedly changed was posted without the change, back to the original. They attempted to change 4 items in the decleration stating they needed a 2/3 majority but when someone asked about getting rid of the HOA they stated "can't do that for x number of years" according to the decleration. So why can you make an ammendment for the x number of years but can't dissolve the HOA? They are in the same document, with the same ammendment clause.

CharlesH9
(Michigan)

Posts:80

06/21/2008 4:26 AM
Here is a lawsuit about the changing of a decleration before the x number of years have passed. http://courtofappeals.mijud.net/DOCUMENTS/OPINIONS/FINAL/COA/19981211_C204954%280033%29_204954.OPN.PDF Does anyone else have this in their decleration??

DonN
(Michigan)

Posts:240

06/21/2008 6:19 AM
Unless the CC&Rs include a provision granting board authority to the board, the rules must not be inconsistent with the provisions in the CC&Rs. Check the CC&Rs for authorities given to the association and/or the board.

Don Nordeen Governance of Property Owners Associations

KirkW1
(Texas)

Posts:1145

06/21/2008 6:39 AM
From the wording of the document it seems clear that at least in your area plenty of CC&Rs have an initial period and then extend in increments automatically if not revoked. But if your association was the one involved in this suit, I don't know why you would ask us. The court stated in very strong language that the CC&Rs must remain as written for the initial 25 year period. I also noticed that the whole thing failed in summery judgment. Thus, the litigants didn't even need to argue the case as it was clear from the outset that the plaintiff would win. Given that if this is your HOA and your BOD were to try and modify the rules through some additional rule, they would be in financial peril. I would put money toward a plaintiff seeking to overturn the matter to win not only the case, but all costs associated with the case. If this is a developer controlled board, then you should look to recoup the financial loss that is in your future from the developer. Because a rule removing material allowed in the CC&R will not withstand a lawsuit. It could easily anger a judge who could then max out any penalties allowed. Judges often take a hard line against people trying to circumvent previous court rulings.

MaryA1
(Arizona)

Posts:2243

06/21/2008 7:03 AM
Posted By CharlesH9 on 06/21/2008 4:19 AM The deleration says maintenance free material i.e. and gives a few specific examples. The BOD has dropped one of the examples after a vote to change the decleration. The decleration provision on ammendments clearly states they can't change it for several years, though the by-laws state they (the by-laws) can be changed with a 2/3 majority. The "new" ammendment was never filed with the county, just changed on the website 8-9 months after the supposed change. The other ammendment they supposedly changed was posted without the change, back to the original. They attempted to change 4 items in the decleration stating they needed a 2/3 majority but when someone asked about getting rid of the HOA they stated "can't do that for x number of years" according to the decleration. So why can you make an ammendment for the x number of years but can't dissolve the HOA? They are in the same document, with the same ammendment clause. Charles, It all depends upon the exact wording under the article titled: "Term: amendments: termination", or some such other like title. My CCRs say: "As amended and supplemented from time to time, this declaration shall continue in full force for a period of 20 years." As you can see, my CCRs can be amended during that initial 20 year period. I would find it highly unlikely that a set of CCRs would not allow amendments w/i the initial 20-30 year period. That isn't giving much forethought to the likelihood that the CCRs would require to be amended. If the CCRs also indicate, or state law dictates, they are to be recorded; then any amendment must also be recorded. IMO, if an amendment is not recorded then it is not valid. I'm thinking the board realized their error in not recording the amendment and that is why they posted a new amendment changing everything back to the original. The board is either throwing out stall tactics because, as a whole, they are against dissolution or they just don't know how to interpret the CCRs. With regard to your question about building materials: do your CCRs specifically state what materials can be used or are these requirements contained in the design guidelines? My CCRs only contain the specific "use restrictions", i.e. no clotheslines, parking restrictions, etc., etc. Design guidelines are contained in the Architectural Guidelines which are not a part of the CCRs but are provided to all members. However, the following clause is contained in the CCRs: "Architectural Rules. The A/C may (but need not) from time to time adopt, amend and repeal rules (the "Architectural Rules"). The Architectural Rules shall serve as guidelines to be used by the A/C in rendering its decisions. Such Architectural Rules need not be the same for all portions of the property and nothing shall preclude the A/C from deviating therefrom in its sole discretion." IMO, this gives the A/C license to make decisions on a case-by-case basis, taking into account extenuating circumstancs, etc. The CCRs of my former assn were very easy to understand and it was quite easy to find particular articles addressing specific issues. However the CCRs of my current assn are quite different. You have to look in different places and read, read, read. Point is, sometimes it takes quite a bit of research to find out exactly what can and cannot be done; it may not be just a matter of reading one article. I'm not implying you haven't done this; but it certainly would be easier for us to give our opinions if you would post - word for word -- the CCRs restriction instead of just paraphrasing. And also state whether or not there are additional design guidelines that might come into play. One can never have too much info when being asked to render an opinion.

KirkW1
(Texas)

Posts:1145

06/21/2008 8:57 PM
I would suggest that anyone read the link before commenting further on this. If the link is regarding his association, then their CC&Rs can not be changed until the initial term of 25 years has been expired. The ruling states this is VERY plain language. If this is in regards to his association, the matter has been decided in summery judgment and affirmed by the court of appeals.

CharlesH9
(Michigan)

Posts:80

06/22/2008 5:45 AM
The link is NOT my association but the language is the same in my decleration. I found this case while searching the net to see if the declerations could be changed. The BOD thinks some things in the decleration can be changed (sizes and materials) and other things can't (the disolving of the HOA). So they posted a draft ammendment changing the decleration on our website last year and this year reposted the original decleration with the one material change. Nothing has been changed with the county. They changed vinyl coated chain link to vinyl and denied the request for a vinyl coated chain link fence for a disabled child.

DonN
(Michigan)

Posts:240

06/22/2008 9:42 AM
CharlesH9 Your post has generated some interesting comments. My observation is that the board's amendment of the CC&Rs is likely invalid because the board does not have the authority to amend the CC&Rs in Michigan. By case law, Ardmore Park v Simon (which I have posted at http://swagman.typepad.com/poa_governance/files/coa057895ardmore_v_simon_amendar.pdf ) requires approval by a majority or higher percentage of owners. Since the CC&Rs are binding on the owners, the owners are parties to the CC&Rs, (a contract). The contract can be amended only with approval of the owners. My guess is that, even if the CC&Rs give the board the authority for amendment, any amendments would likely be invalid under Ardmore Park. Another Michigan case at http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/COA/20050823_C261586_70_261586.OPN.PDF states that CC&Rs can be changed at any time, irrespective of any time limits, by unanimous approval of owners. Youur post also illustrates that questions re amendment of governing documents require careful review of the governing documents and both statutory and case law.

Don Nordeen Governance of Property Owners Associations

MaryA1
(Arizona)

Posts:2243

06/22/2008 10:12 AM
Posted By CharlesH9 on 06/21/2008 4:19 AM The deleration says maintenance free material i.e. and gives a few specific examples. The BOD has dropped one of the examples after a vote to change the decleration. The decleration provision on ammendments clearly states they can't change it for several years, though the by-laws state they (the by-laws) can be changed with a 2/3 majority. The "new" ammendment was never filed with the county, just changed on the website 8-9 months after the supposed change. The other ammendment they supposedly changed was posted without the change, back to the original. They attempted to change 4 items in the decleration stating they needed a 2/3 majority but when someone asked about getting rid of the HOA they stated "can't do that for x number of years" according to the decleration. So why can you make an ammendment for the x number of years but can't dissolve the HOA? They are in the same document, with the same ammendment clause. Charles, It all depends upon the exact wording under the article titled: "Term: amendments: termination", or some such other like title. My CCRs say: "As amended and supplemented from time to time, this declaration shall continue in full force for a period of 20 years." As you can see, my CCRs can be amended during that initial 20 year period. I would find it highly unlikely that a set of CCRs would not allow amendments w/i the initial 20-30 year period. That isn't giving much forethought to the likelihood that the CCRs would require to be amended. If the CCRs also indicate, or state law dictates, they are to be recorded; then any amendment must also be recorded. IMO, if an amendment is not recorded then it is not valid. I'm thinking the board realized their error in not recording the amendment and that is why they posted a new amendment changing everything back to the original. The board is either throwing out stall tactics because, as a whole, they are against dissolution or they just don't know how to interpret the CCRs. With regard to your question about building materials: do your CCRs specifically state what materials can be used or are these requirements contained in the design guidelines? My CCRs only contain the specific "use restrictions", i.e. no clotheslines, parking restrictions, etc., etc. Design guidelines are contained in the Architectural Guidelines which are not a part of the CCRs but are provided to all members. However, the following clause is contained in the CCRs: "Architectural Rules. The A/C may (but need not) from time to time adopt, amend and repeal rules (the "Architectural Rules"). The Architectural Rules shall serve as guidelines to be used by the A/C in rendering its decisions. Such Architectural Rules need not be the same for all portions of the property and nothing shall preclude the A/C from deviating therefrom in its sole discretion." IMO, this gives the A/C license to make decisions on a case-by-case basis, taking into account extenuating circumstancs, etc. The CCRs of my former assn were very easy to understand and it was quite easy to find particular articles addressing specific issues. However the CCRs of my current assn are quite different. You have to look in different places and read, read, read. Point is, sometimes it takes quite a bit of research to find out exactly what can and cannot be done; it may not be just a matter of reading one article. I'm not implying you haven't done this; but it certainly would be easier for us to give our opinions if you would post - word for word -- the CCRs restriction instead of just paraphrasing. And also state whether or not there are additional design guidelines that might come into play. One can never have too much info when being asked to render an opinion.

CharlesH9
(Michigan)

Posts:80

06/22/2008 11:41 AM
Don, Could you be more specific? Maybe I'm just not thinking clearly. After reading those 2 cases I am not sure how they relate to the BOD in my HOA, ammending the decleration 4 years (not even close to the number of years specified) after it was recorded.

DonN
(Michigan)

Posts:240

06/22/2008 7:40 PM
Charles, The answer to your question is in the sentence "Because “[n]egative covenants restricting land use are grounded in contract,” see Mable Cleary Trust, supra at 491, the parties thereto are free to mutually modify or even terminate such covenants so long as there is mutuality of agreement by all those involved." in Kamphaus v Burns. The paragraph containing the sentence explains. Mutuality of agreement means approval by all parties to a contract — in the case of CC&Rs, that means all owners. The time restriction applies only if there is an amendment according to the amendment provisions in the CC&Rs which must also meet the requirement of approval of a majority or higher percentage of owners specified in Ardmore Park v Simon. In the situation of dissolving an association authorized under the CC&Rs, my expectation is that unanimous approval of the owners would be required even without a time restriction on amendment. Reason is that dissolving the association would be a fundamental change not just an amendment (correct, adjust, fix, refine). See Michigan case Maatta v Dead River for explanation. All of these Michigan cases are described on my weblog at http://swagman.typepad.com/poa_governance/2006/02/michigan_case_l.html.

Don Nordeen Governance of Property Owners Associations

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