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Subject: R&Rs and the D, CC&R
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GeorgeS21
(Florida)

Posts:569


07/03/2018 8:16 AM  
Hi All,

I'm a new Board member in different neighborhood than the one I usually post about - 300 ish homes.

This is a much better run, more locked down place with common areas, walking paths, etc. Has a MC that is pretty good.

We have the usual set of documents - I offered to do some research to to make sure we are compliant with recording, MRTA, etc.

As with most neighborhoods like this we have an R&R document that addresses both common and private property rules and regulations. I found a reference in the D, CC&Rs hooking to R&Rs for common property, but no mention of private property.

Is this a requirement for "enforceable" R&Rs?

As always, thanks!
JanetB2
(Colorado)

Posts:4151


07/03/2018 9:52 AM  
The CCR’s are attached to the property titles and is the absolute legal document because all owners signed and agreed to them. This is also the document which requires the majority of owners to agree regarding any changes. This document will stand up very well in a court of law and the HOA following them and the State Statutes can usually win the battle.

The R&R are rules which generally have only have been agreed to by a handful of BOD members vs the membership. They must be “very reasonable” and because implemented by a handful (a.k.a. BOD) can be more easily challenged in a court of law. It is best for any dispute to be careful not to get into a lawsuit regarding R&R’s as there is a higher probablity of the HOA possibly not winning after spending lots of money.

RichardP13
(California)

Posts:2993


07/03/2018 10:33 AM  
Posted By JanetB2 on 07/03/2018 9:52 AM
The CCR’s are attached to the property titles and is the absolute legal document because all owners signed and agreed to them. This is also the document which requires the majority of owners to agree regarding any changes. This document will stand up very well in a court of law and the HOA following them and the State Statutes can usually win the battle.

The R&R are rules which generally have only have been agreed to by a handful of BOD members vs the membership. They must be “very reasonable” and because implemented by a handful (a.k.a. BOD) can be more easily challenged in a court of law. It is best for any dispute to be careful not to get into a lawsuit regarding R&R’s as there is a higher probablity of the HOA possibly not winning after spending lots of money.




Janet

Do you know which document was signed that owners signed and agreed to?

To change or amend take more than just a majority of owners to change, most often it is 66 2/3 and above

Rules and Regulations for the most part come directly from restrictions and architectural control within the CCRs. The authority to create "fair and reasonable" are given to the Board from the CCRs.
GeorgeS21
(Florida)

Posts:569


07/03/2018 10:47 AM  
Roger on the legal side of the CC&Rs.

To Richard’s point ...our CCRs mention RR on common property, but there is no mention of RRs that govern or restrict property owners on their property ....it is just missing.

My question - given there is no mention in the CCRs of the Board being able to create RRs, do the RRs in this neighborhood have standing in the same manner as those that are specifically mentioned in the CCRs?
RichardP13
(California)

Posts:2993


07/03/2018 10:51 AM  
Posted By GeorgeS21 on 07/03/2018 10:47 AM
Roger on the legal side of the CC&Rs.

To Richard’s point ...our CCRs mention RR on common property, but there is no mention of RRs that govern or restrict property owners on their property ....it is just missing.

My question - given there is no mention in the CCRs of the Board being able to create RRs, do the RRs in this neighborhood have standing in the same manner as those that are specifically mentioned in the CCRs?



Do you have a section entitled Architectural?
JohnC46
(South Carolina)

Posts:7695


07/03/2018 10:54 AM  
George

I am a bit confused. You refer to R&R's in the Covenants as such these are what control and will take a majority of owners voting to change. R&R's made by the BOD should not conflict nor override R&R's in the Covenants. Many BOD's try this and in the end, they lose. R&R's made by the BOD can be changed by the BOD.
GeorgeS21
(Florida)

Posts:569


07/03/2018 11:58 AM  
Rules and Regulations is a formal document for our HOA that is voted in by the Board that covers both common and owner property. There are no Rules and Regulations in the CCR ... there are (lower case) rules and regulations as in an CCR.

But, as I noted, the only Rules and Regulations discussed in the CCRs relates to common property.

So, in summary, most HOAs have CCRs, Bylaws, Rules and Regulations. I’m talking about the last of the three.
JanetB2
(Colorado)

Posts:4151


07/03/2018 12:35 PM  
Posted By GeorgeS21 on 07/03/2018 10:47 AM


My question - given there is no mention in the CCRs of the Board being able to create RRs, do the RRs in this neighborhood have standing in the same manner as those that are specifically mentioned in the CCRs?


NO ... Because those mentioned in the CCR’s are attached to everyone’s Property Titles. Other R&R’s can be enforceable if “reasonable”, but a Court will look very hard at the reasonable rule and tend to lean towards an owners free use of their own property outside of the CCR’s.
GenoS
(Florida)

Posts:2349


07/03/2018 1:42 PM  
A timely question since I'm on a committee now that's working to update our Rules & Regulations which were last updated in 2010. We have a lot of common property.... step outside your front door and you're on common property. The driveways are all common property. No one has a "yard" per se. Our CC&Rs are far-reaching when it comes to rules & regulations:

"The Board of Directors from time to time, may make and establish reasonable rules and regulations governing the improvement, use and maintenance of the Association property and individual residences. Such rules and regulations shall be confirmed or amended by a majority of the active members of the Association present at the next annual meeting of the Association."

When R&R change, an up-or-down show-of-hands vote at the Annual Meeting suffices to constitute confirmation of the members present. We include the propsed changes, if there are any, in the Annual Meeting packet every year. The process is nowhere near as formal as amending the other governing documents.

Beware of the legislative changes to FS 720 that just took effect on July 1. The following was added to the end of FS 720.306(1)(e):

"An amendment to a governing document is effective when recorded in the public records of the county in which the community is located."

That language is new. This languge in FS 720.301(8) is not:

"Governing documents means:
(a) The recorded declaration of covenants...
(b) The articles of incorporation and bylaws...
(c) Rules and regulations adopted under the authority of the recorded declaration, articles of incorporation, or bylaws and duly adopted amendments thereto."

Some lawyers are already claiming that Rules & Regulations must now be recorded in the official records of the county. More money for lawyers!

I think the new language in FS 720.306(1)(e) was meant only to cover the Big Three of the governing documents (CC&Rs, Articles, Bylaws) and the actual language is yet another example of how sloppy much of Florida's legislation is written.

But the plain language of the statute is clear and we're trying to make our Rules & Regulations as compact as possible while we work to make some changes to them.
GeorgeS21
(Florida)

Posts:569


07/03/2018 2:23 PM  
OK - I'm gonna do some quoting, so bear with me.

Our CCRs say the following:

- under "Owners' Easements of Use and Enjoyment", item "The right of the Association to reasonably limit the use of any Common Areas by published rules and regulations, including the number of guests and prescribing hours of usage."
- this is the only mention of rules and regulations (I assess this to be more like the capitalized "Rules and Regulations" by the usage of the words)

We also have a formal document, "Rules and Regulations," occasionally modified by the Board that says, in opening:

"The Association reserves the right to make and enforce such other reasonable rules and regulations as in
its judgment may be deemed necessary or advisable from time to time to promote the safety, care and
cleanliness of the premises and for the preservation of good order therein. It is understood and agreed
between the Association and the Owner/Occupant that no assent or consent to changes in, or waiver of
any part of this indenture, in spirit or letter, shall be deemed or taken as made, except the same be done
in writing and endorsed hereon by the Association. Association reserves the right to alter, amend or
modify these rules and regulations and also to promulgate new and additional rules and regulations at any
time and in such event such altered, modified, amended or new rules and regulations shall become a part
hereof and shall have the same force and effect and be binding upon the Owner/Occupant to the same
extend as if incorporated herein at the time of execution of this document."

So ... our D, CCR has specific mention of rules and regulations for Common Area - my read is that "...right of the Association ..." means it could be managed by the Board.

But, since there is no other mention in the D, CCRs of the Association (Board) developing, managing, modifying, etc any "Rules and Regulations" to do things like limit the number of pets, limit types of outdoor cooking, window air conditioners, etc, where does the authority to do this come from?

BTW - as I stated, this HOA is run very well, is well funded, looks great, etc - I am just reviewing things we need to address to ensure we are protected:
- MRTA filing
- documents all recorded (Florida has some new statute language on this, although it does appear original documents to a certain date are grandfathered)
GenoS
(Florida)

Posts:2349


07/03/2018 3:10 PM  
I see your point.

Posted By GeorgeS21 on 07/03/2018 2:23 PM
"The Association reserves the right to make and enforce such other reasonable rules and regulations as in its judgment may be deemed necessary or advisable from time to time to promote the safety, care and cleanliness of the premises and for the preservation of good order therein. ... Association reserves the right to alter, amend or modify these rules and regulations and also to promulgate new and additional rules and regulations at any time ..."

You should consider asking an attorney and be prepared for the opening of a can of worms. I'm not an attorney, but my first reaction is that the association has no power to "reserve the right" to do anything regarding rules & regulations unless those rights are granted and authorized by the other governing documents.

FS 720.301(8)(c) says the governing documents - which must be complied with - include, "Rules and regulations adopted under the authority of the recorded declaration, articles of incorporation, or bylaws and duly adopted amendments thereto."

I don't think a separate "Rules & Regulations" document can convey unto itself authority; that authority has to come from somewhere else.

Big can of worms. If my HOA's CC&Rs, Articles of Incorporation, and/or Bylaws didn't grant the association the power to enact reasonable rules and regulations then I wouldn't be working on them. There's a non-trivial chance that they are invalid. Only a judge will be able to tell for sure
GenoS
(Florida)

Posts:2349


07/03/2018 3:13 PM  
The only authority that seems to be there is the right to make rules and regulations for the use of the pool or whatever other common elements should have "prescribed hours of usage" and limitations on the number of guests.
KerryL1
(California)

Posts:5656


07/03/2018 3:47 PM  
I get your point too, George, and I'm sure you searched your CC&Rs carefully.

Back to Richard's question: Do your CC&Rs contain Architectural Guidelines? Does the Index at the beginning of the CC&Rs (if you have one) define Rules and Regulations?
GeorgeS21
(Florida)

Posts:569


07/03/2018 4:42 PM  
Kerry and Richard - no definition of rules and regulations - lower case rules and responsibilities mentioned only once, and, as I quoted and referenced. Yes, the D, CCRs have significant amount of stick and rudder regarding the ACB and restrictions and provisions. My read is there is sufficient detail to manage construction and modifications of properties. This is not an issue.

Geno - you got to my end state assessment quickly. I will do the research. I’ll discuss it a bit, but until I really understand the implications, it won’t be discussed at the Board level. Hopefully, I’ll find something I’ve missed in my documents review.

GwenG
(Florida)

Posts:592


07/04/2018 11:00 AM  
Quote: "Big can of worms. If my HOA's CC&Rs, Articles of Incorporation, and/or Bylaws didn't grant the association the power to enact reasonable rules and regulations then I wouldn't be working on them. There's a non-trivial chance that they are invalid. Only a judge will be able to tell for sure."

This is what one judge said: 2016 adjudication in CIRCUIT COURT IN AND FOR POLK COUNTY, FLORIDA

Case No. 2015CA-00016

The Covenants and Restrictions constitute a contract to which each lot
owner obligates him or herself at the time of purchase in Saddlebag
Lake. The regulation in question arose subsequent to the time the
parties purchased and so was not part of the “contract” the parties
agreed to at the time of purchase.

Our Declaration also does not specifically state that later-adopted rules and regulations are part of the declaration, only that rules and regulations can be later adopted by members per bylaws. There are only a few rules and regulations incorporated in the Declaration, most of which now have been replaced by county regulations and federal laws. The later rules and regulations adopted by the members are not part of the contract and the contract did not specifically authorize the Association to enforce later-adopted R & R. There is also no enforcement or fining authority in the Declaration. R & R are simply "suggestions" according to this ruling.

My HOA Declaration does not contain the Kaufman language "as amended from time to time" thus, material and substantive statutory changes are not automatically incorporated and enforceable. (Though the 2011 Supreme Court SC10–430 Cohn v Grande Condo decision was specific to condos, there is general agreement (and fear) that the principle will likely be applied to HOAs down the road.)
BenA2
(Texas)

Posts:531


07/04/2018 4:28 PM  
Every HOA is different but, in my experience, the rules and regulations (R&Rs) usually only cover common areas, although, as someone mentioned, architectural guidelines are sometimes placed in a document called R&Rs but they must be supported by the CC&Rs.

You cannot control anything someone does on their own private property without some legal authority. For HOAs, that authority comes from the CC&Rs because it is an agreement between owners and is a binding contract. Unless the CC&Rs give the board authority to make rules applying to private property, they cannot do so because it is not part of the agreement.

So, if there is no mention of the R&Rs in your CC&Rs, you cannot place restrictions on private property using them.
BenA2
(Texas)

Posts:531


07/04/2018 4:28 PM  
Every HOA is different but, in my experience, the rules and regulations (R&Rs) usually only cover common areas, although, as someone mentioned, architectural guidelines are sometimes placed in a document called R&Rs but they must be supported by the CC&Rs.

You cannot control anything someone does on their own private property without some legal authority. For HOAs, that authority comes from the CC&Rs because it is an agreement between owners and is a binding contract. Unless the CC&Rs give the board authority to make rules applying to private property, they cannot do so because it is not part of the agreement.

So, if there is no mention of the R&Rs in your CC&Rs, you cannot place restrictions on private property using them.
GwenG
(Florida)

Posts:592


07/04/2018 5:56 PM  
Quote: "So, if there is no mention of the R&Rs in your CC&Rs, you cannot place restrictions on private property using them."

Well, unfortunately that is EXACTLY what my HOA board did, at the urging of their attorney and they felt so certain of their position that they launched a lawsuit! Perhaps they thought the homeowner would rollover, but they were wrong. The owner counter-sued and won. It cost the members around $100,000 in lawyers fees--the Association's and the Owners! "Winner-Winner, Chicken Dinner"--the ATTORNEYS!

There IS mention of the R & R in our Covenants, which also have a few "rules" incorporated. The Association is only empowered to promulgate rules which must be ratifed by 50% Members; however, there is no specific authority given to the Association to compel compliance with R & R's which are later adopted by Members regardless of whether the property is common or private. As you and others have stated, the primary duty of the Board is to manage and operate the common property. Where an ARC is authorized by the Declaration, the Board can compel certain aspects of the use of private property.

Our HOA gives the board the power to compel compliance with the CCR's through civil suit only. As of now, there are no constraints on a board to sue, but that could change if the owners adopt a Bylaw requiring membership approval to sue. Our HOA utilizes county Code Compliance for violations such as grass overgrowth and other health/safety nuisance.

Members have rejected, on two separate ballots, an amendment giving the HOA authority to enforce CCR's with fines. However, such an amendment would not give the board the authority to enforce R & R, since the Declaration does not compel owners to comply with later-adopted R & R. That was the judicial decision in the case referred to earlier. The Board has engaged in sabre-rattling in the past, threatening to enforce R & R with fines regardless of Covenant authority, and perhaps that is why the Membership has rejected the notion of fines/penalties administered by their neighbor-volunteer directors.

The intention of the Developer must be strictly construed in the clear language of the Declaration and unless there is a specific written authority, the document will be (as another poster stated) construed in favor of the homeowners' free use of their property! In law, the Declaration is treated as a contract and it cannot be re-interpreted and unilaterally changed except as unambiguously stated in the original contract.
KerryL1
(California)

Posts:5656


07/04/2018 6:43 PM  
And it also is different in condo like our high rise. The CC&Rs do have a couple of restrictions on our separate interests, e.g., no windows coverings except white or off-white that's visible from the exterior.

And then some ARC items like we may not penetrate beyond the sheetrock in our condos (for obvious reasons), must adhere to certain guidelines for hard surface flooring.
JanetB2
(Colorado)

Posts:4151


07/06/2018 12:51 PM  
Posted By GenoS on 07/03/2018 1:42 PM
A timely question since I'm on a committee now that's working to update our Rules & Regulations which were last updated in 2010. We have a lot of common property.... step outside your front door and you're on common property. The driveways are all common property. No one has a "yard" per se. Our CC&Rs are far-reaching when it comes to rules & regulations:

"The Board of Directors from time to time, may make and establish reasonable rules and regulations governing the improvement, use and maintenance of the Association property and individual residences. Such rules and regulations shall be confirmed or amended by a majority of the active members of the Association present at the next annual meeting of the Association."

When R&R change, an up-or-down show-of-hands vote at the Annual Meeting suffices to constitute confirmation of the members present. We include the propsed changes, if there are any, in the Annual Meeting packet every year. The process is nowhere near as formal as amending the other governing documents.

Beware of the legislative changes to FS 720 that just took effect on July 1. The following was added to the end of FS 720.306(1)(e):

"An amendment to a governing document is effective when recorded in the public records of the county in which the community is located."

That language is new. This languge in FS 720.301(8) is not:

"Governing documents means:
(a) The recorded declaration of covenants...
(b) The articles of incorporation and bylaws...
(c) Rules and regulations adopted under the authority of the recorded declaration, articles of incorporation, or bylaws and duly adopted amendments thereto."


Some lawyers are already claiming that Rules & Regulations must now be recorded in the official records of the county. More money for lawyers!

I think the new language in FS 720.306(1)(e) was meant only to cover the Big Three of the governing documents (CC&Rs, Articles, Bylaws) and the actual language is yet another example of how sloppy much of Florida's legislation is written.

But the plain language of the statute is clear and we're trying to make our Rules & Regulations as compact as possible while we work to make some changes to them.


What I put in BOLD above does list the Rules & Regulations as a “Governing Document”. That is potentially why the attorneys are stating they need to be now recorded to be effective to meet the new statute. I would contend this is also to help new buyers in also being able to read and know the R&R’s prior to their purchase, as many buy and then are slapped with this document after the fact. Filing helps promote transparency and which is a good thing.
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