Interpretation of one paragraph in our covenants..

Started by TomE4 • 9 replies • 1448 views

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TomE4 (South Carolina)
Posts: 26

Posted:

Can anyone tell me exactly what this sentence means?

Notwithstanding anything to the contrary contained herein, the Declarant and the Board or its designee shall be authorized to grant individual variances from any of the provisions of this Declaration, the Bylaws, and any rule, regulations, or use restriction promulgated pursuant thereto if it determines that waiver of application or enforcement of the provision in a particular case would not be inconsistent with the overall scheme of development for the Community.

Thanks,

Tom

PeterD3 (Florida)
Posts: 708

Posted:

Yea, it gives the Developer, HOA or other specified individual, the ability to override the docs. if they feel it does not diverge from the 'feel' of the community.

TomE4 (South Carolina)
Posts: 26

Posted:

We live in a mixed community of townhomes and single-family homes. In our covenants, we have the paragraph:

"All amounts collected by the Association as Neighborhood Assessments shall be held in trust for and expended solely for the benefit of the Neighborhood for which they were collected and shall be accounted for separately from the Association's general funds."

Would that paragraph I mentioned earlier allow the board to negate the
paragraph (above)? The board is saying that if the main Site reserves get low that they have the authority to borrow from these townhome reserves. We've been arguing for months that they don't have this authority (based on that statement above).

LarryB13 (Arizona)
Posts: 4,099

Posted:

It says "Declarant and the Board" have the power to grant variances. Does that mean that both parties must agree or that each has the power to act independently of the other?

The language in the first paragraph cited indicates that the Declarant and the Board may grant individual variances. This implies that an individual owner must petition the Declarant and/or the Board to request a variance for his property.

Taking money from neighborhoods is not an individual variance. It is an outright violation of the covenants. The BOD is using the individual variance provision as a pretext for doing whatever the BOD wishes. The fact is that the BOD has a fiduciary obligation to maintain the reserve at an adequate level. That may mean taking the unpopular action of a special assessment. Stealing from the neighborhoods does not satisfy the requirement of maintaining adequate reserve funding.

SusanW1 (Michigan)
Posts: 5,202

Posted:

I think the "variance" in the paragraph does not deal with financial issues, but is talking about real estate issues, perhaps if someone wanted a dog house on the outside pation, or to paint their door a particular color.

It would not apply to moving funds from one account to the other.

TomE4 (South Carolina)
Posts: 26

Posted:

Larry,

To clarify, in our covenants, it states "WHEREAS, Declarant is the owner of the real property described on Exhibit “A”. This
whole community is no longer under the control of the developer (and hasn't been for probably 8 years or more). I think you're on
to something.

Can you point me to some resource you may have used to explain what is meant by variance? I'm starting to think
you are correct (we never believed for a minute that this negated the paragraph about neighborhood reserves). I just want
to have my proverbial "ducks in a row" before I go back to the board.

Thanks,

Tom

BradP (Kansas)
Posts: 2,640

Posted:

Quote:

Posted By TomE4 on 11/10/2011 4:27 PM
Can anyone tell me exactly what this sentence means?

Notwithstanding anything to the contrary contained herein, the Declarant and the Board or its designee shall be authorized to grant individual variances from any of the provisions of this Declaration, the Bylaws, and any rule, regulations, or use restriction promulgated pursuant thereto if it determines that waiver of application or enforcement of the provision in a particular case would not be inconsistent with the overall scheme of development for the Community.

Thanks,

Tom

Tom:

here is my amateur lawyer take and no I did not stay at a holiday inn lastnight...The original paragraph you stated gives the board the right to grant variances to any restriction, declaration, etc. contained in your documents and that would include in my mind any declaration related to assessments as they are a part of the CC&R's. The tricky part if you read the above paragpraph is it refers to "individual variances" which i intrepret to mean they are talking about individual homeowners. Based on that I would say your board does not have the authority to borrow the money because they are not an individual homeowner and that isn't the intention of the above paragraph.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By TomE4 on 11/11/2011 6:20 AM
Larry,

Can you point me to some resource you may have used to explain what is meant by variance? I'm starting to think
you are correct (we never believed for a minute that this negated the paragraph about neighborhood reserves). I just want
to have my proverbial "ducks in a row" before I go back to the board.

Thanks,

Tom

Tom:

My county zoning department uses the term "variance" whenever someone requests to be permitted to erect something on his property that is otherwise not allowed by the zoning code. An example would be to use a cargo container for storage where such containers are not permitted. To obtain a variance, the owner must file a written request setting forth the reasons why he should be granted his variance.

CarolR11 (Colorado)
Posts: 2,563

Posted:

I totally agree with Larry and with Susan. Your board is trying to pull a fast one.

TomE4 (South Carolina)
Posts: 26

Posted:

I agree with those who say that it does not give the board the authority to borrow from the townhome reserves. I found this on a legal website:

Once you've moved in, getting relief from overly restrictive CC&Rs isn't easy. You'll likely have to submit an application (with fee) for a variance, get your neighbors' permission, and possibly go through a formal hearing.

It's what someone said early. It's basically an exception to the covenants (e.g. someone wanting to build a deck larger than what the CC&Rs allow). Here's the website it came from:

http://www.nolo.com/legal-encyclopedia/homeowners-associations-hoas-ccrs-29786.html

Thanks to all for your input!

Tom

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