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Subject: New Board Guidelines
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Author Messages
ChristopherH2
(Alabama)

Posts:5


01/29/2018 2:13 PM  
In our most recent elections I was voted in as a board member as was two others on a three member board. All three of us have been in the HOA, which is over 8 years old, for 2 years or less. Of course all three of us have our own aspirations but generally we do have consensus on many things. The problem that we face is differentiating between a change in policy and establishing general guidelines. I know the topic of a shed has been beaten to death in this forum but in this case my focus isn't on the shed itself but on defining guidelines that clarify if a shed can be allowed per the covenants. This is because in the past some sheds have been approved while others have not and we want to ensure consistency here. At the same time the new board would like to allow sheds with limitations. Just to be clear we still are a declarant controlled HOA.

CC&R Article VI:
"Section 10. Architectural Standards. No exterior construction, alteration, addition, or erection of any nature whatsoever shall be commenced or placed upon any part of the Community, except such as is installed by the Declarant, or as is approved in accordance with this Section, or as is otherwise expressly permitted herein. No exterior construction, addition, erection, or alteration shall be made unless and until plans and specifications showing at least the nature, kind, shape, height, materials, and location shall have been submitted in writing to and approved by an Architectural Review Committee (“ARC”) established by the Board."

"Section 37. Brick Requirements. All dwellings and permitted accessory buildings constructed on the lots of said subdivision shall have an exterior of at least fifty percent stone or
masonry brick construction, with no less than twenty percent of the exterior of the sides of the dwellings or buildings consisting of stone or masonry brick unless, in the sole discretion of the Architectural Review Committee, the style and exterior of the dwelling shall be deemed to architecturally enhance the community. Visible unpainted red or yellow "sewer brick" will not be allowed

The above sections are the two in questions. My questions:

1. How much leeway does the board have in allowing pre-manufactured sheds as long as they're, say, not visible from the road and meets size and color requirements set forth in the guidelines? In other words based on Section 37 would the board be able to allow a wooden shed that's painted in a similar color scheme as the house? The guideline maintains a difference between a structure mounted down to a foundation vs a structure that could be considered portable. Pre-manufactured sheds are technically portable but one could argue so are mobile homes.

2. If a guideline were provided for the ARC to follow that stipulates what's acceptable, is this considered a change in policy or just general guidelines? This question is important because a policy change would require the board to distribute copies to the community and allow for a comment period. A general guideline for the ARC to follow as the boards interpretation of the covenants wouldn't require distribution and comment period.

While the current board would like to allow sheds within reason the current covenants can't be changed without the declarants approval of which I'll guarantee won't happen. Any help would be appreciated.
PaulB12
(Virginia)

Posts:38


01/29/2018 3:22 PM  
What you are about to do is probably the most dangerous thing any HOA board can do. The guidelines must be run by the attorney, the HOA attorney must say okay to them, they must be distributed to the entire community before they are voted in.

Who's to say the next board won't come in, rip up the guidelines, make their own interpretation for this or that of the shed make-up. You are going to cause a big mess. If neighbors have already been approved for sheds based on the covenants then who is to say that interpretation was the correct one.

The shed make-up must be very clear and no ambiguity.
JohnC46
(South Carolina)

Posts:7635


01/29/2018 3:35 PM  
Chris

What you are proposing is the shed can violate the Covenants as long as it cannot be seen form the road. Wrongo.
TimB4
(Virginia)

Posts:15889


01/29/2018 7:57 PM  
Chris,

Rules, regulations and guidelines may not be in conflict with the CC&Rs.
If there is a conflict, then the CC&Rs is the document that must be complied with.

As has been pointed out, if the Board chose to disregard the CC&Rs, then they are being reckless.
Depending on how much time goes by, a future board can point out the conflict and force everyone to remove sheds not in compliance. Worse, since your board approved the shed, the Association may be on the hook to pay damages to the owner (cost of the shed, cost of installation, cost of removal, cost of restoring the landscape).

Catastrophic: a homeowner challenges the issue in court and the court rules that since the covenant wasn't enforced, it is deemed invalid.

If you want to allow outbuildings that don't have stone/brick, then gather support and amend the CC&Rs so those outbuildings are allowed.
ChristopherH2
(Alabama)

Posts:5


02/13/2018 9:23 AM  
No one actually answered the question. My question wasn't in regards to the shed itself per se, the shed was an example, but how to differentiate between guidelines and a policy change that would require approval of the community/declarant? Based on responses there's no such thing as a BOD having authority to establish guidelines despite every HOA in the country doing it, i.e. size and shape of political signs. And no, a new board cannot come in and change a previous boards guidelines. Revoking a guideline established by a previous board requires majority approval by the community or declarant.

Per Article VI Use Restriction and Rules. Section 1. General. “In addition, the Board, by a two-thirds (2/3) vote, may, from time to time, without consent of the Members, promulgate, modify, or delete other use restrictions and rules and regulations applicable to the Community. This authority shall include, but shall not be limited to, the right to limit the type and size of vehicles within the Community and to set the maximum and minimum speeds of vehicles on private streets within the Community and to impose all other necessary traffic and parking regulations and to restrict the maximum noise levels of vehicles in the Community. The Board may also restrict certain portions of the recreational facilities administered by the Association to adults only. Such use restrictions and rules shall be distributed to all Owners and Occupants prior to the date that they are to become effective and shall thereafter be binding upon all Owners and Occupants until and unless overruled, canceled, or modified in a regular or special meeting by a Majority of the total Association vote entitled to vote thereon and, so long as the Declarant has an option unilaterally to subject additional property to this Declaration as provided in Article X hereof, the consent of Declarant.”

The point is we’re just trying to do the right thing and follow the appropriate process. Changing the covenants requires the Declarant while establishing guidelines where previous guidelines didn’t exist only requires majority board approval. I’m trying to get clarification on where the line is drawn.
ChristopherH2
(Alabama)

Posts:5


02/13/2018 9:43 AM  
I also want to add this exert from the covenants:

"Section 18. Deviations. The Board or its designee or the Declarant so long as the Declarant has an option to subject additional property to the declaration as provided in Article X above, may, in the exercise of its discretion, permit deviations from the restrictions contained in this Declaration, the By-Laws, the rules and regulations, the use restrictions, and the design guidelines."
KerryL1
(California)

Posts:5535


02/13/2018 11:32 AM  
Well, Christopher, and excuse me if I didn't read the sections closely enough, I'm wondering why you/your board thinks that "policy" changes must be sent to owners for their comments? Can you cite a section of your CC&Rs or bylaws that says that? Or AL state law?

You wrote: "... a policy change would require the board to distribute copies to the community and allow for a comment period. A general guideline for the ARC to follow as the boards interpretation of the covenants wouldn't require distribution and comment period."

Sorry for not answering your question either, but need clarification.
SheliaH
(Indiana)

Posts:2231


02/13/2018 11:53 AM  
If the developer still runs the show, it might not matter what the board thinks or wants to do right now because you can be overruled.

Regarding guidelines, many CCRs allow the board to establish them as long as they don't conflict with the CCRs. For instance the CCRs might say pre-manufactured sheds are allowed upon prior approval from the Board and leave it at that, but the board can establish guidelines regarding the size, where they can be placed, approved materials, etc. That keeps the CCRs from being too unwieldy and gives the community the flexibility to add or drop guidelines based on changes in taste, materials, etc. So, you'll want to check the CCRs and possibly Bylaws to see where the board's authority begins and end.

If you want to allow sheds and are concerned about the developer, why not have this discussion with them as to what you'd like to do? The developer may agree with your suggestions and incorporate them into the documents now or set them up as guidelines to be established and amended by the board as needed. After the homeowners take over, the board can always revisit the guidelines to see what needs to be tweaked. If a change requires a change to the CCRs, that, of course, would require homeowner approval, so depending on what you want to do, it may be helpful to check with the association attorney if you want to make major changes.

PS: it doesn't hurt to ask homeowner opinion on proposed guidelines - somebody may come up with a great suggestion or consideration the board didn't think about. It can also encourage more cooperation, especially if homeowners feel they had some say instead of a board imposing something on them
JohnC46
(South Carolina)

Posts:7635


02/13/2018 4:31 PM  
Chris

We might have a semantics issue here. Typically Covenants, Declarations, Bylaws, etc. require a specific number (% of whatever) to change. These are things people agreed to when purchasing so changing them must be rigorous.

Rules and Regulations, Guidelines, Suggestions, etc. can be changed by the BOD alone.

One example is a swimming pool. The BOD probably could not close it down without owner approval (% depends on your docs) but the BOD can when it is open. Could this lead to abuse like open 11AM to 1PM? Yes, but they might could do it so the answer then would be replace them.


SueW6
(Michigan)

Posts:291


02/14/2018 6:43 AM  
'restrictions and rules and regulations" are not Covenants.

If you wanted to add, "and other approved materials" to your siding descriptions, the board has that authority.


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Forums > Homeowner Association > HOA Discussions > New Board Guidelines



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