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Subject: Conflict in R&R
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Author Messages
CatherineS3
(North Carolina)

Posts:22


06/12/2018 9:22 AM  
Our newly created R&R's have been reviewed and approved by our attorney. Two paragraphs under Resolution of Violations have now been questioned by a board member. Par. G in our R&R's states as follows: "In futherance of (NC Planned Community Act) G.S. 47F-3-107, if it is decided that a fine should be imposed, a fine not to exceed one hundred dollars ($100.00) may be imposed for the violation and without further hearing, for each day more than five days after the decision that the violation occurs." Following that, Par. H states: "Enforcement of fines for violations shall be as follows: five (5) days following Master Association final decision, a fine of $15.00 per day will be imposed without further hearing until violation is cured." The board member says there is a contradiction in the dollar amount. The $15.00 penalty was voted on and set as the fine for every violation to avoid accusations of unfairness or selectiveness and the amount is well below the $100 cap in the Planned Community Act. Our committee doesn't see a conflict. Do you?
JohnC46
(South Carolina)

Posts:7767


06/12/2018 11:48 AM  
I for one would not put fine amounts in the Covenants as Covenant changes require a membership vote. I would rather see the Covenants refer to the fact that fines are allowed and amounts of fines will be per a BOD set Fining Schedule.
GeorgeS21
(Florida)

Posts:659


06/12/2018 12:27 PM  
John,

I think Catherine was referring to the R&Rs, which are usually related to the CCRs but are not included in them. CCR would refer to the R&Rs, but R&Rs are not actually a physical part of the CCRs.

Catherine - is this the way your CCRs are set up?
RichardP13
(California)

Posts:3057


06/12/2018 1:29 PM  
Posted By GeorgeS21 on 06/12/2018 12:27 PM
John,

I think Catherine was referring to the R&Rs, which are usually related to the CCRs but are not included in them. CCR would refer to the R&Rs, but R&Rs are not actually a physical part of the CCRs.

Catherine - is this the way your CCRs are set up?



I am going to have a little fun with this.

Associations will generally have 4-5 governing documents when set up. They would be:
1. Articles of Incorporation
2. CCRs
3. Bylaws
4. Condo Plan
5. Rules and Regulations

R&R are always a separately document that are most likely derived with authority from the CCRs. As John alluded to, you don't put fines in the CCRs (harder to add and change), but in the R&R, which are easier to add and change. Generally amended or adding to the CCRs at a minimum of 66 2/3% affirmative vote, whereas R&R require a Board vote.

Now for the fun part, cause I am a little punchy from staying up late watching the Singapore presser. For reference, I was (past tense) a Republican for 45 years. If anyone watched the show from Singapore, how do you think the president would have answered this same question? Remember, he owns condos and has HOA's in those condos.

Good luck!
BenA2
(Texas)

Posts:531


06/12/2018 1:35 PM  
I agree with your committee that there is no conflict. Not to exceed $100 includes everything from $0.01 to $100.
RichardP13
(California)

Posts:3057


06/12/2018 1:39 PM  
Posted By BenA2 on 06/12/2018 1:35 PM
I agree with your committee that there is no conflict. Not to exceed $100 includes everything from $0.01 to $100.



The fine schedule needs to be refine and be more specific and not in general terms to fly in court.
CatherineS3
(North Carolina)

Posts:22


06/12/2018 2:05 PM  
Yes, George, the two paragraphs I am referring to are in our Rules & Regulations.
CatherineS3
(North Carolina)

Posts:22


06/12/2018 2:26 PM  
We are mostly concerned about whether or not there is a contradiction associated with the dollar amount of the fines and would love to hear some of your opinions which might help to assuage the board member so we won't have to seek our attorney's opinion to quiet him down.
JanetB2
(Colorado)

Posts:4151


06/12/2018 3:02 PM  
Posted By CatherineS3 on 06/12/2018 9:22 AM

"In futherance of (NC Planned Community Act) G.S. 47F-3-107,

if it is decided that a fine should be imposed, a fine not to exceed one hundred dollars ($100.00) may be imposed for the violation and without further hearing, for each day more than five days after the decision that the violation occurs."

"Enforcement of fines for violations shall be as follows:

five (5) days following Master Association final decision, a fine of $15.00 per day will be imposed without further hearing until violation is cured."

The board member says there is a contradiction in the dollar amount. The $15.00 penalty was voted on and set as the fine for every violation to avoid accusations of unfairness or selectiveness and the amount is well below the $100 cap in the Planned Community Act. Our committee doesn't see a conflict. Do you?



It is potentially too difficult to determine if conflict with just this section. With just this section I could see a potential conflict due to the “per day” noted in both sections. However, if other text above the section you noted is essentially stating that the State Statutes allows a maximum of $100 per day then possibly would not be conflicting because the later section notes “enforcement”. My personal opinion is it could potentially be better written to avoid any such confusion.
BenA2
(Texas)

Posts:531


06/12/2018 4:16 PM  
Posted By RichardP13 on 06/12/2018 1:39 PM
Posted By BenA2 on 06/12/2018 1:35 PM
I agree with your committee that there is no conflict. Not to exceed $100 includes everything from $0.01 to $100.



The fine schedule needs to be refine and be more specific and not in general terms to fly in court.



I wasn't suggesting a range of $100, only that any amount in that range did not conflict with "not to exceed $100." The OP said they set the fine for everything at $15. You cannot get more specific than that.
LetA
(Nevada)

Posts:503


06/13/2018 7:11 AM  
I sm put off that the R&R's clause about fines up to $100 won't need a hearing. Where's the due process?
JoyceR2
(Virginia)

Posts:128


06/14/2018 8:01 PM  
Simply state that fines for violations will be in accordance with the CCR & By-laws (can list sections). Does NC law restrict amount? Do they require (due process) hearings etc. before you can levy a fine?
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