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JeffT
(Maryland)

Posts:33

09/15/2008 8:35 AM
By-Law under powers and duty of the Board of Directors: "Adopt and publish rules and regulations governing the use of the common areas, recreational facilities, and the Lots and the personal conduct of the members and their families members and guests thereon, and to establish reasonable penalties for the infraction of said rules and regulations, the declaration and these by-laws, including the imposition of monetary fines which, once imposed..." Does the word "use" give the board the ability to place fines on such things as maintenance for mailbox falling over, fence rotting, cracks in porch and step, etc. Or does it mean actually using the lot for something like: can't run a business, can't park a car on lot, can't play football on lot. Or Both and all things? What would publish be. Does the board have to publish publicly and make available for all to the rules and regulations that they have adopted before they can impose fines?

DarylF
(Washington)

Posts:69

09/15/2008 8:42 AM
Posted By JeffT on 09/15/2008 8:35 AM What would publish be. Does the board have to publish publicly and make available for all to the rules and regulations that they have adopted before they can impose fines? Yes. They can't fine anyone based on unwritten/unpublished rules.

GeorgerwilliamsW
(Indiana)

Posts:767

09/15/2008 8:44 AM
Jeff, you are trying to hard to parse words here. I think a eminently reasonable interpretation of the bylaws would include mailboxes etc. And publish, reasonably interpreted, means to make known. Yes, the board has to make the rules known before it can fine. Truly it is unproductive to pick apart bylaws, whether it is the board doing it or a member. Oh man, I can just imagine all the comments from the word parsers here.

JohnK3
(Pennsylvania)

Posts:561

09/15/2008 8:46 AM
Jeff, With that broad language, I'd say they can regulate everything you mentioned. Publication = Notification to Membership. Once a valid reg is passed and notification given, the fining can begin. Though there's usually some intermediate steps, like a few notices of violations asking for corrections or to cease activities, before fines are levied.

JeffT
(Maryland)

Posts:33

09/15/2008 8:59 AM
Personally I want the HOA to be able to fine for maintenance such as rotten fencing, siding falling off, maiboxes bent and leaning over. I just am trying to make sure that they have the right to do it and everything is kosher so that their isn't any problems. One thing that does irritate me is that it is hard to find out what are infractions and what the fines are. Things are not easy to fined until the homeowner gets a violation letter. Tomorrow we are holding hearings for violations made before me and several other board member were elected to the board. I have to sit there and listen to the griping. How can I tell them tough luck if I cannot show them were it dictates that it is a violation and that the board has the right to fine them and that we are not just making this stuff up as we go. Especially when they have had or others have beening doing the same thing for years without any violations.

JohnK3
(Pennsylvania)

Posts:561

09/15/2008 9:27 AM
Jeff, If you have no regs, there can be no enforcement. So why not come up with some regs that will cover what the Board wants to accomplish? That won't help at your upcoming meeting, and will take a bit of work, but is necessary.

JeffT
(Maryland)

Posts:33

09/15/2008 9:59 AM
After a couple months of bitching to get the published rules and regs, the only thing provided was an Annual Inspection Procedure which has loosely defines what is looked at. For instance some homeowners are fined for a rotten fence. Here is whatis stated: "Fences are not required, but if utilized must be no more then 6 feet in height. An Architectural Change Request is required whenever an fence is installed or replaced." Nothing about being stained, rotten post, missing slates or parts, replacement slates must be identical to the original, etc. Sorry, but I do not mean to beat this to death, but I want to make changes and want to make sure that I have a good system in place. Wording and all. I want to make it fair and let the community know what is expected by at least letting them have easy access to the rules and regs.

SusanW1
(Michigan)

Posts:2316

09/15/2008 3:28 PM
This is a very long compound sentence that says the Board can: 1) Adopt and publish rules and regulations governing: the use of the common areas, recreational facilities, and the Lots and the personal conduct of the members and their families members and guests thereon, and 2) establish reasonable penalties for the infraction of said rules and regulations,the declaration and these by-laws, including the imposition of monetary fines which, once imposed..." The "rotten fences" should be dealt with in some other rules and regulations in a section that talks about fences. (size, color, material, condition of, placement, etc.) If if ain't in writing, it doesn't exist.

DonN
(Michigan)

Posts:242

09/15/2008 3:34 PM
JeffT: I think you have only part of the facts necessary to answer your question. Your post refers to "rules and regulations, the declaration and these by-laws". I presume the declaration is the CC&Rs which run with the land, and is the superior document. Any powers of the board for the rules and regulations related to the land and its uses must be based on the CC&Rs. If the board isn't authorized in the CC&Rs, it does not have the authority to issue rules and regulations for that area/aspect. Do the bylaws run with the land or are they the bylaws for the governance of the owners association? If the the latter, I believe the bylaw provision you quoted applies only to what is authorized in the CC&Rs. If it is carte blanche, your owners are subject to abuse. I would then recommend immediate amendment to specifically define the powers and limitations of the board. More information is needed to answer your question.

Don Nordeen Governance of Property Owners Associations

RW1

Posts:0

09/15/2008 5:15 PM
By-Laws desribe corporate governance (conduct). HO [property] maintenance responsibilities are usually assigned in the "CC&R" section of your "docs." Here you may need to pursue legal means for compliance such as legal notification, arbitration, then a court ordered mandate (injunction).

MicheleD
(Kentucky)

Posts:1856

09/15/2008 7:09 PM
I would think that the Deed Conditions, Covenants and Restrictions would contain a clause that addresses the lot owners' "Duty to Maintain." Such a clause would apply to ANY structure on the lot and not necessarily require a separate rule for each and every thing an ARC would approve. Such a section could read something like this: Section 6. Duty to Maintain Lot. (b) From and after the date construction of a single family residence on a lot is started, it shall be the duty of each lot owner to keep the grass on the lot properly cut, to keep the lot free from weeds and trash, and to keep it otherwise neat and attractive in appearance, including repairs to any structure due either to normal wear and tear or damage due to unexpected event.

MaryA1
(Arizona)

Posts:2485

09/15/2008 7:20 PM
Posted By JeffT on 09/15/2008 8:35 AM By-Law under powers and duty of the Board of Directors: "Adopt and publish rules and regulations governing the use of the common areas, recreational facilities, and the Lots and the personal conduct of the members and their families members and guests thereon, and to establish reasonable penalties for the infraction of said rules and regulations, the declaration and these by-laws, including the imposition of monetary fines which, once imposed..." Does the word "use" give the board the ability to place fines on such things as maintenance for mailbox falling over, fence rotting, cracks in porch and step, etc. Or does it mean actually using the lot for something like: can't run a business, can't park a car on lot, can't play football on lot. Or Both and all things? What would publish be. Does the board have to publish publicly and make available for all to the rules and regulations that they have adopted before they can impose fines? What the board needs to do is thoroughly familiarize themselves with the restrictions outlined in the CCRs. Then they need to adopt additional rules & regs governing all the things outlined in the article of the bylaws you quoted. This article of the bylaws also empowers the board to impose "reasonable" penalties (fines) for violating any of the restrictions contained in the CCRs or any of the board adopted rules and regs. So they need to come up with a fine schedule which outlines the amount of the fine for each type violation. Any rules and regs adopted by the board, together with the fine schedule should be mailed to each member of the assn. The rules & regs should be maintained by the Sec. in a separate binder. These rules & regs can be amended or rescinded at will by the board; however, each time a change is made the members must be informed.

KirkW1
(Texas)

Posts:1190

09/15/2008 8:40 PM
While I understand that you want the ability to fine for maintenance and other issues, this is not what the place to hang the hat on. I will go with Susan that this particular section refers to the ability write rules regarding use of common areas and fine for violations to said rules. I also suspect as others do that another section will give you power to fine for violation of maintenance rules. To that end, I would look to the "Design Guidelines" if you have them.

JeffT
(Maryland)

Posts:33

09/16/2008 5:36 AM
In 2004 the board and a lawyer amended the by-laws to add that clause along with some others ( Enforcement, Leasing, Architectural Control). They did it very "quietly". They by-laws only need a majority vote from a quorum of 10% of the members. To change the CC&R they would have needed 75% of all of the members to agree. I think that the board had very little powers in the CC&R as I read it. About the only thing concerning the house and lot is the Architectural Control where the only restriction is that any changes need approval. It sounds as if they have amended the wrong doc. I gues it is time to seek a lawyer to see what exactly the board can mandate upon the members.

MicheleD
(Kentucky)

Posts:1856

09/16/2008 6:47 AM
Yes. I agree, it does sound as though they amended the wrong document. But for clarification, the CC&Rs don't actually give the BOARD specific powers, anyway, or they shouldn't. The CC&Rs are the restrictions that run with the land, and any "power" in them is usually granted to all members of the HOA. Not always, but usually. I'm not sure why the board would put something in the by-laws that should actually be in the CC&Rs, that all residents should have the ability to review and weigh in on. If they wanted to change something in the by-laws, that would make it easier for them to make amendments to the CC&Rs, they probably should have changed the quorum baseline for membership meetings for the purpose of amending CC&Rs. When our developer transitioned the HOA management over to us, that's one of the first things that was changed in the by-laws. The quorum was changed from something like 75% required to 51% (I think. It may even have been lower, but I don't have the by-laws with me right now). They also changed some wording on what would happen if a quorum were not met for the noticed meeting so that the meeting could reconvene after 3 days (nor more than 10 days later) and a quorum would not be required. Any business approved at that meeting, including amendments, would only require a quorum of those members present. But it would be very chaotic to put the type of material in the by-laws that should go into the CC&Rs, simply because the CC&Rs run with the land, the by-laws don't. It would seem to me that a resident could successfully challenge CC&R-type restrictions in the by-laws. Maybe not, but it seems it has the potential to be a huge loophole a resident could drive a [commercial] truck through!

MaryA1
(Arizona)

Posts:2485

09/16/2008 3:06 PM
Posted By KirkW1 on 09/15/2008 8:40 PM While I understand that you want the ability to fine for maintenance and other issues, this is not what the place to hang the hat on. I will go with Susan that this particular section refers to the ability write rules regarding use of common areas and fine for violations to said rules. I also suspect as others do that another section will give you power to fine for violation of maintenance rules. To that end, I would look to the "Design Guidelines" if you have them. Kirk, Here is the excerpt from the bylaws: "Adopt and publish rules and regulations governing the use of the common areas, recreational facilities, and the Lots and the personal conduct of the members and their families members and guests thereon, and to establish reasonable penalties for the infraction of said rules and regulations, the declaration and these by-laws, including the imposition of monetary fines which, once imposed..." Note that it says: "establish reasonable penalties for the infraction of said rules & regs, the declaration and these bylaws, including the imposition of monetary fines". This gives the board the right to establish penalties and impose monetary fines for violations of the rules AND violations of the CCRs. There would be no other rules anywhere else!

MaryA1
(Arizona)

Posts:2485

09/16/2008 3:09 PM
Sorry, I meant to also add: Anything that is already written in the CCRs, including the design guidelines, are restrictions. The board establishes the rules. That is why, IMO, that section of the bylaws gives the board the power to impose fines for anything that is already in the CCRs and any and all rules they adopt. There is no need to look for the authority to fine anywhere else in the gov. docs.

MaryA1
(Arizona)

Posts:2485

09/16/2008 3:14 PM
Posted By JeffT on 09/16/2008 5:36 AM In 2004 the board and a lawyer amended the by-laws to add that clause along with some others ( Enforcement, Leasing, Architectural Control). They did it very "quietly". They by-laws only need a majority vote from a quorum of 10% of the members. To change the CC&R they would have needed 75% of all of the members to agree. I think that the board had very little powers in the CC&R as I read it. About the only thing concerning the house and lot is the Architectural Control where the only restriction is that any changes need approval. It sounds as if they have amended the wrong doc. I gues it is time to seek a lawyer to see what exactly the board can mandate upon the members. Jeff, I agree! Enforcement, leasing and a/c definitely belong in the CCRs. The bylaws govern the internal management of an org: elections, meetings, duties of officers, etc. However I have heard of other things that are sometimes contained in the bylaws, such as the items in your amendment. It's not something that is established by state law, and it can become confusing when some developers, attorneys and board members don't do it according to established business practice.

MaryA1
(Arizona)

Posts:2485

09/16/2008 3:23 PM
Michele, You said: "But for clarification, the CC&Rs don't actually give the BOARD specific powers, anyway, or they shouldn't." Not quite true. The power to enforce is always in the CCRs, or at least it should be IMO. That where all the restrictions are so it makes sense that that is where the power to enforce would be. However, it can also be in the bylaws but it's usually just stated in a broad sense of the term: ". . .the board of directors have the power and duty to promulgate rules and regulations. . .impose penalties. . ." There is much more detail in the CCR enforcement provisions.

MicheleD
(Kentucky)

Posts:1856

09/16/2008 4:32 PM
I agree, to some extent, but I was pretty much trying to articulate the idea that all the association members have the power to enforce the deed restrictions. Now the board may have the power to enact rules and regs, but that's pretty much designed to clarify and support the CC&Rs, and those rules and regs need to be in concert with the CC&Rs as well as be confined or constrained by them. In other words, they don't really have power to create new CC&Rs on their own. I realize that regular members might not have the $$$ to enforce the governing docs. And I'm probably just splitting hairs. But I just want to get away from the idea that the board members are somehow overlords. That somehow they are of a higher level or class than other members. They are, at best, I would guess, stewards. Of course, I'm being overly simplistic, I realize that. But I think part of the reason we get these rogue board members is that they think they are given some inherent power over people, rather than stewardship of the CC&Rs and other governing docs.

GeorgerwilliamsW
(Indiana)

Posts:767

09/16/2008 4:38 PM
Michele, Right on target! I agree completely! Great posting. I wish others would heed what you have written. Living in covenant communities would be so much better.

KirkW1
(Texas)

Posts:1190

09/16/2008 5:48 PM
Mary, You are right in that I missed a very important could of words as st forth below: Here is the excerpt from the bylaws: "Adopt and publish rules and regulations governing the use of the common areas, recreational facilities, and the Lots and the personal conduct of the members and their families members and guests thereon, and to establish reasonable penalties for the infraction of said rules and regulations, the declaration and these by-laws, including the imposition of monetary fines which, once imposed..." My earlier problem was that I did not notice that it did include the Lots. I had been sidetracked by the earlier wording and missed that this extended to the Lots. As such, this does in fact give the Board the right to set forth fines for violations of rules within the neighborhood at large.

SusanW1
(Michigan)

Posts:2316

09/16/2008 6:39 PM
OK - so we are all clear that the Board CAN impose fines - BUT the board must pass a policy or rule that explains the fining process and clearly documents the consequences if fines are not paid. And then make sure that all members have a copy of the fine schedule.

KirkW1
(Texas)

Posts:1190

09/17/2008 5:45 AM
I totally agree with you Susan. I would also go one step further and get the whole thing recorded. (The rules and their fine schedule.) I would aim to have them take effect a couple weeks to a month after a recorded copy is mailed to the owners. The purpose of the recorded copy is simply to protect everyone from accusations of change. It prevents the owner from showing you a doctored copy, and protects the owner from you producing a different copy then you sent.

JeffT
(Maryland)

Posts:33

09/17/2008 6:04 AM
SusanW1 and all: The enforcement process was outlined and put in on the same amendment. We had our 1st round of hearings. People were cited for various reasons. Now the rules by-laws say that the board can make and publish the rules and regulations. My comment for a lot of the violations was "where is the rule for the violation and when was it published?". No one could answer it. The main answer was it is implied. What can you do but laugh. There was a statement by the Pres and the mgmt co that there is a clause with a statement referring to maintaining appearance. I said show me. They couldn't find it but the mgmt. co. is supposed to find it and email me today. It appears to me and some other new members that procedures aren't followed, things are made up as they go along, etc. I do not think that half of the board has even read the docs. Sounds as if they assume their powers by hearing what other HOAs do. Even though they have the communities interest at heart and are not really demanding anything outrageous, how can you say pay this fine and it will accumulate until you do what I say. If you don't and the accumulated fine reaches $500 dollars we will file a lien and may start foreclosure. Sorry but as much as I agree with what the board is trying to do, if they don't have the authority or haven't communicated to the memebers the rules, I can not go along with it.

KirkW1
(Texas)

Posts:1190

09/17/2008 9:32 AM
Jeff, You are very correct, the Board needs to write out the rules and publish them. I personally believe in filing them with the county clerk. The cost is very low and protection very high. It makes things look even more above board. Now minor clarifications can simply be placed in the minutes. Though again, it helps to publish them clearly with reference to where in the minutes to find the information. The thing is that while the Board can pass a rule, the membership retains the power to overrule the Board in almost every situation. Many an HOA Board seems to forget this or want to circumvent this. But anything less sets up for a two tier system in the neighborhood. It also violates every aspect of what our nation was founded upon. The core of an HOA is the same as that of the nation and all other governments under it. You elect people to take care of things on your behalf. You don't elect them to be a ruler.

JeffT
(Maryland)

Posts:33

09/17/2008 9:53 AM
KIRKW1, Exactly. We have 3 new board member who would like to get the community involved with the process to breakdown the two-tier system, but at the same time keep the neighborhood looking good. I remember reading that our state or county has a mandated repository for such pertinent info. Which I am sure our board has not followed. I do not think that they can produce the minutes of past meetings. In fact I have heard that they can not find some minutes when there is a dispute and the homeowner want to see them. I received a reply for my request that the mgmt. co. show me the clause where it states anything like the homeowner must maintain the homes appearance (maintenance, upkeep, etc). They said they can't find one.

RW1

Posts:0

09/17/2008 10:32 AM
Doubtful you can foreclose for fines.

KirkW1
(Texas)

Posts:1190

09/17/2008 10:43 AM
My suggestion would be to sit down on a weekend and read through the entire set of documents if you can manage it. Just read them front to back. Then start reading with the idea of relating the various clauses together. For instance, when something is in the covenants, look for related items in the by-laws. Another idea is to highlight the words "must" and "shall" with one color, and "may" with another. The idea being to find what you are required to do and what you can optionally do. To be honest, it takes a lot of study and you will miss things. I am still finding things in our documents after spending nearly six months reading them. And I missed the little bit about "and Lots" when I read the excerpt from your documents.

MaryA1
(Arizona)

Posts:2485

09/17/2008 12:47 PM
Jeff, Kirk has offered some good suggestions to get you started on oriently yourself to your gov. docs. I might add, that as you go along, make notations that XX Bylaws Article addresses XXX. This will make it so much easier when trying to find a particular article that addresses a particular subject. If you are a board member you really need to make your fellow board members understand the fact that all the members MUST be informed of all board adopted rules. The members must also understand that these board adopted rules hold as much weight as the CCR restrictions and are enforced in the same manner as the CCRs. Because of this, it's always been my personal opinion that board-adopted rules should be voted on by the members; but most assn's do not have that requirement.

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