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Subject: Resolutions and Rules need help !
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GlenM4
(Tennessee)

Posts:139


04/16/2018 5:36 AM  
So looking threw our CRs and bylaws, I have a few questions about Rules and Regulations and Resolutions.

1st - our board never used Resolutions we have only gone by the CRs and bylaws. of Course we are very new still. I don't think last year board knew what resolutions were. What is the best way to explain to them about resolutions.

in CRs it says

"Article IV: Rights in Common Areas

the right of the association to promulgate rules and regulations or Rules of conduct for the use of the common areas. "

2nd what is difference in rules and regulations and rules of conduct? When it says association is it saying the board has the right? or the board can do these if all members agree? I have more info on this so keep reading.

in bylaws

"Manner of acting
Except as set forth below and except as otherwise required by these bylaws and action to be taken at any meeting of the members at which a quorum is present shall be upon the affirmative vote of a majority of the votes which may be cast as such meeting. "


In bylaws
"Rules of Conduct: In order to assure the peaceful and orderly use and enjoyment of the lots in ... the association may , from time to time, adopt modify and revoke in whole or in part, by a majority vote of the members present in person or represented by proxy at any annual meeting or special meeting duly called for the purpose, such reasonable rules an regulations, to be called rules of conduct and to be consistent with the declaration and these bylaws, governing the conduct of said person in ... of the association as it may deem necessary. Such rules of conduct, upon adoption, and every amendment , modification and relocation thereof, shall be delivered, promptly to each owner. and shall be binding upon all lot owners an occupants of the lots in the subdivision development."

and last.. in bylaws
Section Board of directors
L. Power of Duties
"The Board shall exercise for the association all powers, duties, and authority vested therein by these bylaws or the decoration , except for such powers, duties an authority specifically reseed herein to the member of the association or the developer. The board shall have the following powers and duties:

15: unless otherwise provided herein, to comply with the instructions or a majority of the members as expressed in a resolution duly adopted at any annual or special meeting of the association.

16: the association shall (i)have all powers permitted to be excised by a nonprofit corporation and (ii) have and exercise all powers necessary or convenient to effect any or all o the purpose for which the association is organized, and to do every other act not inconsistent with law which may be appropriate to promote and attain the purpose set forth in the declaration and these bylaws. "

So if we as the board decided to add a rules an regulations via a resolution. How would this work?

thanks
Glen
SueW6
(Michigan)

Posts:360


04/16/2018 6:28 AM  
In a nutshell:

Rules and regulations can be passed by the Board.

The Members of the Association can - at a duly called meeting (with notice or at an Annual Meeting) recind any motion the Board has passed.

Rules and regulations might include: Setting pool hours; establishing parking regulations, contracting with the garbage company, etc.

Changing your CCRs is much more complicated and needs approval from the Members, after being vetted by the Board for legality and/or conflict of other bylaws or CCR. Vote for this would be on the agenda for the Annual Meeting of the Members.

Don't know if this answered any questions.





SheliaH
(Indiana)

Posts:2318


04/16/2018 7:08 AM  
Usually when the board enacts a rule, it does so via a resolution. For example, if you were enacting certain rules for your collection policy, such as when late fees are levied, you might enact a resolution stating what the new rules will be and then cast a vote on accepting them or not. The resolutions should be part of the board meeting minutes.

Rules, regulations and rules of conduct are terms that are sometimes used interchangeably to mean the same thing, but if you want to set definitions for each of them, you could do that via a resolution. For example, some rules of conduct might cover behavior at the community swimming pool. I like to think of them as fleshing out the CCRs or Bylaws. For instance, the Bylaws might state the board has an obligation to hire contractors to maintain and improve the common areas. The rules might set out criteria that those contracts must contain (e.g. all contractors should have a current license and performance bond, when appropriate; work that will cost over $5000 must have at least three bids to consider, etc.)

The main things I think people should remember about rules, regulations or whatever you want to call them:

(1) they CANNOT contradict the CCRs or Bylaws

(2) consider how the rule will be enforced - you should have a good rules enforcement policy (or regulations if you want to use that term) that covers things like when warning letters will be sent, appeal rights, fining schedule and when the matter should go to the association attorney

(3) it's impossible to pass a rule for every.single.situation in HOA-land, so don't even try. It shouldn't be necessary, provided the board uses a little common sense, along with creativity, empathy and stuff like that there to resolve problems. Too many rules become too difficult and time-consuming to enforce - and most people won't remember them anyway.

(4) rules may need to be revisited and amended (or possibly dropped altogether) over time, so just because you pass it now doesn't mean it's set in stone forever and even stone wears away eventually (provided a bigger stone doesn't come along and reduce it to rubble).

(5) buy in from the homeowners is always a good idea, although the Board does have the final say on the rules. If you're considering a rule on a controversial issue, distribute a draft to the homeowners and ask for their comments (preferably in writing or schedule a special meeting). Set a deadline to submit comments and suggestions than review them to see what makes sense and come up with a final draft, and then vote (via a resolution). Notify the homeowners of the new new rule, when it takes effect, and a summary of why some things were revised and others remain the same.

PS: Note this doesn't apply to the CCRs - to change them or the bylaws, you'll need a majority of the homeowners to agree to that. Read your documents to find out how.


You said your board is relatively new, so I would suggest you visit the community association institute (CAI) website and invest in some of their educational materials on setting rules and enforcing them. Better yet, if there's a local chapter in your area, see if they have any seminars on setting rules and rules enforcement - Every Board member should attend, but if only one person has the time, that's better than nothing - have him or her provide a full report to the group.

Finally, have a sit down with your attorney to get his/her take on rule setting and enforcement. He/she doesn't have to help you with all of them, but it would be helpful to know best practices because you want your rules to stand up in court if someone should sue the association (and that always happens sooner or later). Educating yourself will also prevent running to the attorney for every single situation, which runs up legal bills.

Hope this helps!



JohnC46
(South Carolina)

Posts:7871


04/16/2018 8:49 AM  
A BOD can also overturn/modify any prior rules and regulations.
GlenM4
(Tennessee)

Posts:139


04/16/2018 9:27 AM  
I am just not sure where it says we can do this in the CRs or bylaws? Where it says we can adopt the rules and regulations with out member votes.
GlenM4
(Tennessee)

Posts:139


04/16/2018 9:30 AM  
could not figure out how to edit post. , but in one section it says
for rules of conduct
the association may , from time to time, adopt modify and revoke in whole or in part, by a majority vote of the members present in person


but then under it in board powers it says

the association shall (i)have all powers permitted to be excised by a nonprofit corporation and (ii) have and exercise all powers necessary or convenient to effect any or all o the purpose for which the association is organized, and to do every other act not inconsistent with law which may be appropriate to promote and attain the purpose set forth in the declaration and these bylaws. "


very confusing to me.
TimB4
(Virginia)

Posts:16050


04/16/2018 10:50 AM  
Posted By GlenM4 on 04/16/2018 5:36 AM

So if we as the board decided to add a rules an regulations via a resolution. How would this work?




First and foremost, the Board can only adopt rules and regulations regarding common areas.
Rules and regulations regarding private property must/should be within the CC&Rs.

Our procedure would be:

A proposal is drafted and presented to the Board.
The Board amends the draft and approves presentation to the membership for comment.
Draft proposal is sent to membership and a meeting is held for comments/concerns.
Board amends draft based on comments/concerns of membership.
Board may (depending on the resolution) send the amended draft to the attorney for comment.
If sent to the attorney, board amends based on attorney comments and creates final proposal
Final proposal is voted on by the Board.
If adopted, final proposal is published to the membership (copy sent to all members).


Glen, send me an email and I'll provide you some examples of our resolutions: [email protected]
KerryL1
(California)

Posts:5957


04/16/2018 11:14 AM  
Glen, your CC&Rs state: "Article IV: Rights in Common Areas

the right of the association to promulgate rules and regulations or Rules of conduct for the use of the common areas. "

The Association is governed by the Board of directors, so the Board can makes rules about the common areas.

The board decides to approve a new rule, let's say. This new rule is a resolution as is any other board decision. In our HOA, we don't cll them resolutions, we just call them "decision." Our decisions about rules are in our Community Handbook, sometimes called Rules & Regulations. The Board's other decisions are listed on a document called Board Decisions.
GlenM4
(Tennessee)

Posts:139


04/16/2018 11:14 AM  
Thanks,

Are roads in subdivision considered common area?
and ill send you what i have so far. maybe its same as yours lol .

JanetB2
(Colorado)

Posts:4166


04/16/2018 10:23 PM  
Posted By GlenM4 on 04/16/2018 11:14 AM
Thanks,

Are roads in subdivision considered common area?



Depends ... Do your CCR’s note that the Roads are to be maintained by the HOA? If not then they are most likely deeded to and owned by the local government.

The easy way to keep in mind regarding Rules and Regulations is to keep in mind the following facts:

CCR’s are signed and agreed to when individuals purchase property and are ATTACHED to their Property Titles. They are generally upheld in any court battle unless they violate any State or Federal Laws. These require a majority of owners based on CCR’s or State Laws to change or amend.

Rules and Regulations are implemented by a handful of individuals (generally the Board of Directors). Because they are not voted on by the majority of owner’s if challenged the court will consider whether or not they are reasonable and whether they are contrary to any CCR’s or other laws. Because they are not attached to the property in the same manner as CCR’s ... they have a possible degree of loosing in a court battle. That is why they are generally only used for small items such as HOA swimming pool rules ...


JohnC46
(South Carolina)

Posts:7871


04/17/2018 8:51 AM  
Many associations get in trouble by passing Rules & Regulations that override the Covenants/Bylaws. This is a no no.
JanetB2
(Colorado)

Posts:4166


04/18/2018 11:12 AM  
Posted By GlenM4 on 04/16/2018 9:27 AM
I am just not sure where it says we can do this in the CRs or bylaws? Where it says we can adopt the rules and regulations with out member votes.


It does not ... per your own statement above:

“In bylaws
"Rules of Conduct: In order to assure the peaceful and orderly use and enjoyment of the lots in ... the association may , from time to time, adopt modify and revoke in whole or in part, by a majority vote of the members present in person or represented by proxy at any annual meeting or special meeting duly called for the purpose, such reasonable rules an regulations, to be called rules of conduct and to be consistent with the declaration and these bylaws, governing the conduct of said person in ... of the association as it may deem necessary. Such rules of conduct, upon adoption, and every amendment , modification and relocation thereof, shall be delivered, promptly to each owner. and shall be binding upon all lot owners an occupants of the lots in the subdivision development."”

Your bylaws specifically require (which is not seen in all HOA’s) that majority of members present in person or proxy at annual meeting or special meeting to implement “rules and regulations” which are to be titled “Rules of Conduct”. Per your own documents via the statement you noted the BOD cannot implement themselves.
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