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Subject: What becomes of rules once sponsor is sold out and leaves
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SteveS8
(New York)

Posts:118


11/07/2017 6:20 PM  
There is a debate among homeowners and board members in our community as to what becomes of the rules written in our 480+ page Offering Plan once the builder has sold out and leaves. Some are suggesting that only the By-Laws which were filed with the State are legally binding and everything else is now up to management to administer policy as they see fit.

For instance, there was a rule in The Declaration of Covenants, Restrictions, Easements, Charges, and Liens section of the Offering plan that forbids more than two cars per household in the community, but that was not part of the By-Laws. What does this mean now? Can homeowners bring in as many cars as they please? If the board has said nothing about all of these rules that were not in the By-Laws, what becomes of them?

Thanks,
Steve
New York
MelissaP1
(Alabama)

Posts:6788


11/07/2017 7:37 PM  
By-laws aren't typically filed with the state. By-laws are the HOA's internal documents. The Covenants and Restrictions (CC&R's) are filed locally with the County. Articles of Incorporation are filed with the State. So may need to establish the correct terms and paperwork exists. Which should be public but for the by-laws.

Former HOA President
JanetB2
(Colorado)

Posts:3642


11/07/2017 8:02 PM  
HOA 101:

The Declaration of Covenants, Conditions, and Restrictions - Filed with County Records are attached to your Property Title ... this is the Supreme document to be followed by the homeowners with regards to your association. This can sometimes supercede your State Law if your State Laws give precedence. Other times your State Law can supercede this document. It is the document that will contain items such as home construction, parking, fences, etc.

The Bylaws are the regulations governing your Board of Directors.

Articles of Incorporation - Filed with the State is the document incorporating your Non-Profit HOA.

You just continue as you were when Developer leaves. The exception is the Homeowners will control the HOA Board of Directors vs Developer Controlling. If you let us know whether or not you are Single Family Homes or Condo ... we can provide links to your State Statutes for some light reading


GenoS
(Florida)

Posts:1631


11/07/2017 9:18 PM  
Posted By SteveS8 on 11/07/2017 6:20 PM
There is a debate among homeowners and board members in our community as to what becomes of the rules written in our 480+ page Offering Plan once the builder has sold out and leaves. Some are suggesting that only the By-Laws which were filed with the State are legally binding and everything else is now up to management to administer policy as they see fit.

For instance, there was a rule in The Declaration of Covenants, Restrictions, Easements, Charges, and Liens section of the Offering plan that forbids more than two cars per household in the community, but that was not part of the By-Laws. What does this mean now? Can homeowners bring in as many cars as they please? If the board has said nothing about all of these rules that were not in the By-Laws, what becomes of them?

Thanks,
Steve
New York



It's normal in most states for the "governing documents" of a condo or homeowners association to be considered a contract. When the developer leaves there's usually a successor in interest and often that is an incorporated association. Everything with regard to your covenants and other rules & regulations (normally) would stay the same. Check your documents, they may provide for some other arrangement. Without knowing for sure, I suspect that the "some who are suggesting" are wrong.
SteveS8
(New York)

Posts:118


11/08/2017 5:23 AM  
I really appreciate the prompt responses. I have forwarded them to our community, and two additional questions have arisen...

1) If a 2/3 vote is required to alter a by-law, what is required to alter a provision of a covenant?

2) If the terms of a covenant are breached, what remedy exists for residents obligated by such Covenants?

Steve
New York
PaininyourA
(South Carolina)

Posts:119


11/08/2017 5:48 AM  
Steve,

You have Bylaws and CCRs reversed.

The CCRs (Covenants and Restrictions) are the PRIMARY and CONTRACTUAL document.

The Bylaws merely 'govern' the Corporation whose function is ADMINISTRATION of the CCRs.

The CCRs MUST be recorded.

The Bylaws MAY be recorded.



ANY/ALL rules and regulations are merely resolutions of the BOD and MUST NOT conflict with the CCRs nor modify the restrictions against any privately owned property (they apply ONLY to common elements).



For amending any documents: methods will be contained in the documents themselves.


You need to read, reread, then read AGAIN and AGAIN until you understand ALL documents.
JohnC46
(South Carolina)

Posts:7010


11/08/2017 6:13 AM  
Posted By SteveS8 on 11/08/2017 5:23 AM
I really appreciate the prompt responses. I have forwarded them to our community, and two additional questions have arisen...

1) If a 2/3 vote is required to alter a by-law, what is required to alter a provision of a covenant?

2) If the terms of a covenant are breached, what remedy exists for residents obligated by such Covenants?

Steve
New York




1. The majority needed to change a Bylaw and/or Covenant can vary and will be part of the document itself.

2. Typically the association can fine for a Covenant violation. In some states, unpaid fines can lead to a foreclosure on the unit/home by the association. One must have a published fining schedule before they start fining.
JohnC46
(South Carolina)

Posts:7010


11/08/2017 6:16 AM  
Steve

As PITA said:

ANY/ALL rules and regulations are merely resolutions of the BOD and MUST NOT conflict with the CCRs nor modify the restrictions against any privately owned property (they apply ONLY to common elements).

They are made by the BOD and they can be changed by the BOD.
JanetB2
(Colorado)

Posts:3642


11/08/2017 8:16 AM  
You have not yet stated what type of homes is in your HOA. Here are some links regarding your State to also help answer some of your questions:

HOA:
https://ag.ny.gov/real-estate-finance-bureau/hoa

Condominium:
https://law.justia.com/codes/new-york/2006/real-property/idx_rpp0a9-b.html
https://ag.ny.gov/real-estate-finance-bureau/condominiums

Website with various links to various info:
https://www.hopb.co/new-york/

As others have stated you need to read all your documents many, many times and know them well.
KerryL1
(California)

Posts:4381


11/08/2017 8:36 AM  
I think by "rules, Steve means covenants. If the covenants say only two cars are permitted you all must abide. OR you get Owner approval to amend the covenants. In our CC&Rs, the % needed to approve amendments is at the end of the CC&R.

Steve, at the beginning of your covenants might be definitions. Read them so you use the right words.

Our covenants are 110 pages long. What in the world is contained in your "Offering Plan" of 480 pages. is it the convents AND bylaws AND Articles of Incorporation AND possibly some Rules and Regulations??? Our definitions at the start of our CC&Rs refers to our Rules & Regs as a governing document. They can be amended with a board vote after a 30-day comment period by Owners.
JanetB2
(Colorado)

Posts:3642


11/08/2017 8:51 AM  
Posted By KerryL1 on 11/08/2017 8:36 AM
I think by "rules, Steve means covenants. If the covenants say only two cars are permitted you all must abide. OR you get Owner approval to amend the covenants. In our CC&Rs, the % needed to approve amendments is at the end of the CC&R.

Steve, at the beginning of your covenants might be definitions. Read them so you use the right words.

Our covenants are 110 pages long. What in the world is contained in your "Offering Plan" of 480 pages. is it the convents AND bylaws AND Articles of Incorporation AND possibly some Rules and Regulations??? Our definitions at the start of our CC&Rs refers to our Rules & Regs as a governing document. They can be amended with a board vote after a 30-day comment period by Owners.


Apparently New York is getting very detailed noting many small items with these plans and which MUST be filed and approved by the Attorney General's Office. Here is one link regarding "Offering Plan" if interested: https://therealdeal.com/issues_articles/condo-offering-plan-pages-pack-a-punch/
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