Conflict between Covenants and Rules and Regulations

Started by ReneeZ • 9 replies • 3965 views

💬 Join us to post & get advice from 50,000 HOA & Condo leaders.

⚡ Takes 30 seconds

Already a member? Log in

ReneeZ (Colorado)
Posts: 18

Posted:

I have read the statement that the BOD of an HOA can adopt reasonable rules or regulations as long as they don't conflict with the covenants. Could someone be more specific about what "conflict" means? If the covenants is silent on the issue can the BOD avoid the requirement in the covenant to garner 67% of owner vote by just adopting the new rule in the rules and regulations document that the BOD has the authority to modify? Their claim is being that the covenant is silent then it is not in conflict if they add it. Seems very over reaching to me. With this mentality they would have the authority to adopt any rule to address anything that is not addressed in the covenants. Any thoughts?

Also could someone lead me to the Colorado state statute that this quote "the BOD can adopt any reasonable rule as long as it does not conflict with he covenants" originates from? I would like to read what it states specifically.

Thank you!

TimB4 (Tennessee)
Posts: 21,047

Posted:

Renee,

Typically, the rules or regulations apply only to the common area and not to private property. The Board may also adopt guidelines. Guidelines are standards used by an approving authority (usually the architectural committee) to determine if approval should be granted for a change to a specific property.

The authority to adopt these rules are found within your governing documents. Check your CC&RS, Bylaws and possibly the Articles of incorporation.

There is an order of precedence for documents that govern an Association. Typically, if there is a conflict between a lower document and a higher one, the higher one usually controls (unless it defers to the lower document).

The order of precedence is:

Federal laws
Federal Regulations
State Laws
County Codes
City Ordinances
Declaration of Covenants, Conditions & Restrictions
Articles of Incorporation
Bylaws
Association Rules/Regulations adopted by the Board (Resolutions)

The CC&Rs are, in reality, a contract between you and your neighbors. The Association is formed to administer and enforce that contract.

Hope this helps,

Tim

JeffR7 (California)
Posts: 251

Posted:

Renee, your board may adopt rules that are not covered in your CC&Rs. There wouldn't be a conflict because those docs are silent about this specific issue.

With that said, it's much easier for members to challenge a rule than to challenge CC&Rs or Bylaws. Courts are more likely to overturn a rule than they are to overturn a CC&R

GlenL (Ohio)
Posts: 5,491

Posted:

Also could someone lead me to the Colorado state statute that this quote "the BOD can adopt any reasonable rule as long as it does not conflict with he covenants" originates from? I would like to read what it states specifically.

I don't think that that particular phrase is specifically used in the (CCIOA) but 38-33.3-302(A) gives the Board power to: adopt and amend bylaws and rules and regulations;

The phrase is more common sense and common usage, somewhere in your CC&R's there should be a section describing the hierarchy of the documents which will state something to the effect that if there is a conflict between the Covenants, the By-Laws or the Rules and regulations the Covenants triumph.

For instance if the Covenants state: There shall be no fences allowed. Then you can't pass a rule or a By-Law to allow fences. However if the Covenants states that fences are allowed, then the Board may pass reasonable rules as to the type of fence allowed and its placement, unless the Covenant is specific as to the type and placement.

You can read the CCIOA here:http://www.hindmansanchez.com/sites/default/files/resources/CCIOA%202010%20corrected%20logo%20%2805627648%29.PDF

If you type rules in the search block you can see what rules are allowed and more importantly for your post what kind are not allowed.

Studies show that 5 out of 4 people have problems with fractions

ReneeZ (Colorado)
Posts: 18

Posted:

I would think that if a rule is not addressed in the covenants then it would be allowed. For example, if our covenants has a section titled Property Use and Restrictions and it listed a varienty of things that were restricted but it did not mention anything about dogs then if the BOD passed a rule that prohibited dogs in the rules and regulations it would be in conflict with the covenants. Our covenats clearly states that an amendment can only be made with a 67% vote of the owners. Our BOD is avoiding that mandate by adding things to the rules and regulations document. They then claim that they have the right to do that because the rule is not in conflict with the covenants. I have disagreed with them because if something is not prohibited in the covenants should mean that it is allowed. If that is not the case then the BOD would have the power to change anything they deemed reasonable..............no short term renters, no pets...........these types of things in my view are property use and they should only be able to be adopted if voted on by the Owners. thoughts?

PetunkaM (Florida)
Posts: 1,009

Posted:

Renee,

The property covenants are really the most important document you have. ANY CHANGES to the covenants require a vote of the membership.

If the Article:’ Use of Property’ does not prohibit pets then the Board alone does not have the authority to introduce this – major restriction - as a ‘Rule’ which is just a subset of covenants.

The BOD (or the membership) can however introduce new restrictions to the Covenants, be it parking, lease or pet restrictions, etc. only by amending the covenants and even if approved by the membership they may not apply to existing owners who did not vote for it. (At least not in Florida).

Clearly, no-pets would be in conflict with any rights you have as an owner now.

JeffR7 (California)
Posts: 251

Posted:

Renee, Petunka is absolutely correct.

Since you don't have any limitations on pets it would imply that they are allowed up to the local ans state limit. A rule may not prohibit pets in this case.

The same goes for rentals. If your CC&Rs don't limit a duration of rental it means that any duration is allowed, and rules may not change that.

What would be allowed is for the board to say if you have a pet you must walk it on a leash at all times, or you cannot go through a main door and must use service entrance. Those are things that your board may regulate without membership's approval.

ReneeZ (Colorado)
Posts: 18

Posted:

I wonder if that same logic holds true in Colorado? This has been my argument with the BOD all along. They went around getting owner vote on the claim that their new rule was not in conflict to the covenant because it is not addressed in the covenant. So I have said to them so you really think you have authority to create any property restriction rule you deem reasonable if it has not been addressed in our covenants? They are adamant that in Colorado they have that right. Because of that I have secured a lawyer however I am very frustrated because at the end of the day if I prevail in court against them it is all of my neighbors that will have to pay for their over reaching approach. I tried repeatedly to get them to follow our covenants which requires owner vote but they refused and moved forward on enforcing the new rule which forced me to get a lawyer.

Thank you for your insight.

PetunkaM (Florida)
Posts: 1,009

Posted:

Renee,

Covenants go with your deed and I do not know of any state law exceptions or logic that would permit the BOD to change them. Any good real estate broker or settlement attorney would tell you that. But, I also do know what you are saying. Some board members try to skew the facts or show their authority. They however cannot force the present owners to get rid of pets. The new owners could challenge them also. In other words, that Rule is not enforceable.

I think the BOD is making a mistake but arguing with them may not do you any good. A simple $200 letter from a property or HOA attorney could change their mind. Can you get a few owners to pitch in? If so, you could also send a copy of this letter to all owners. What do you have to lose? On the other hand, you can happily ignore the Rule and let them to challenge you.

To be honest, I am a little surprised that your covenants are silent on the pet issue. When were they written?

PS; I would not let the attorney to talk me into taking this issue to court.. no need yet.

EllieD (Vermont)
Posts: 446

Posted:

ReneeZ,

As is typically the case, the definition of what constitutes “a Rule” and how it is to be enacted varies somewhat depending upon State Statute, and also on the Statute revision applicable.

The following article written specifically for Colorado - re “Drafting and revising Rules for Colorado Condos and HOAs” should help clarify for you:

http://www.ocrhlaw.com/library/Drafting_and_Revising_Rules_Regulations_Policies_and_Procedures.pdf

🎯 You've read this entire discussion

Join the conversation with 50,000 HOA & Condo Leaders:

✓ Ask follow-up questions
✓ Share your experience
✓ Get expert advice
✓ Access 350,000 discussions

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in here