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Subject: conflict between rule and declaration
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GimmeJ
(Georgia)

Posts:6


10/14/2018 5:15 PM  
Hello everyone!

We have the following problem:

1. HOA declaration states that "Dogs, cat and any other household pets may be kept in the units, provided that they are not kept for commercial purpose and do not endanger the health of any owner or resident"

2. HOA rules and regulations state that "pets are limited to 20 punds and no aggressive breeds are allowed."

Can HOA enforce this limiting rule? As I understand rule conflicts with declaration as it restricts implied right given by declaration. Am I right?

Thank you!
GenoS
(Florida)

Posts:3041


10/14/2018 5:19 PM  
Hi GimmeJ and welcome to the forum. We went round and round with a similar issue last year and ended up amending our CC&Rs when an attorney advised us that the Rules & Regulations we wanted to impose were inconsistent with what was in the CC&Rs. I think the answer to your question is "no". The Rules & Regulations can't restrict breeds and/or weight limits if the CC&Rs are silent on the matter.
AugustinD


Posts:1765


10/14/2018 5:55 PM  
I do not think the HOA can enforce the weight limit rule and, say, win in court, for the reason you give.

I think the rule prohibiting aggressive breeds poses two problems: First, it is too ambiguous to be enforceable. Second, under the Declaration, the HOA already has the right to take action against a dog who bites a person or another dog, so the rule against "aggressive breeds" seems superfluous.
GimmeJ
(Georgia)

Posts:6


10/15/2018 9:56 AM  
Thank you!

I think that it's very hard to enforce pet's weight restriction even if rule doesn't contradict declaration. Because governing documents should sate how to measure pets weight or declare owners responsibility to weight their pets.
GeorgeS21
(Florida)

Posts:1243


10/15/2018 11:50 AM  
Much of what you Gimme sounds like someone attempting to get around the rules ... if not, I apologize.

Stating there isn't a mechanism for weighing sounds much like my time building satellites where every engineering process had to be completely documented. I think this is a bit simpler than what you state.

In a scenario - someone moves into a neighborhood with a 20 pound weight limit on dogs and they have a 80 pound dog - the Board, while trying to enforce runs into the CCRs and R&Rs like in your case - then the Board must decide whether they want a neighborhood of large dogs or not - then decide to spend the money to ensure they get what they want.

If this sounds negative, I'm sorry - many of those asking questions on this site are seeking ways to avoid following the rules.

If you are a Board member and your Board decides it wants to restrict to weight, let it go to court for first level resolution. Then, if given feedback on what MUST be in the CCRs for it to win in court, make those changes to your CCRs and try and get it passed by the HOA membership.
KerryL1
(California)

Posts:6403


10/15/2018 1:20 PM  
Does you declaration say anything about the HOA's (or boards') authority to make rules? Our does and we have several rules about dogs including they must be on leash in the common areas, they must not bark incessantly, etc., in our Rules & Regs. I would never expect HOW to weigh a dog to be in the Declaration.

Often, I think, the basic topic is in the CC&Rs or declaration and then the details are fleshed out in the HOA's Rules & Regulatons.
RoyalpitA


Posts:0


10/15/2018 1:25 PM  
'Most' CCRs give the BOD power to establish R&Rs governing the 'common elements'.

If a private home (or townhouse) on public streets IMO no additional rules re: pets.

If a private home (or condo unit) abutting private roads or common hallways IMO the BOD may regulate the use of the common area.


Complex, not complicated.
JenniferG11
(Texas)

Posts:548


10/15/2018 8:54 PM  
Posted By GimmeJ on 10/14/2018 5:15 PM
Hello everyone!

We have the following problem:

1. HOA declaration states that "Dogs, cat and any other household pets may be kept in the units, provided that they are not kept for commercial purpose and do not endanger the health of any owner or resident"

2. HOA rules and regulations state that "pets are limited to 20 punds and no aggressive breeds are allowed."

Can HOA enforce this limiting rule? As I understand rule conflicts with declaration as it restricts implied right given by declaration. Am I right?

Thank you!




What do the by-laws say?
KerryL1
(California)

Posts:6403


10/15/2018 10:08 PM  
Usually, Jen, bylaws won't deal with this type of topic.
JenniferG11
(Texas)

Posts:548


10/16/2018 4:45 AM  
Posted By KerryL1 on 10/15/2018 10:08 PM
Usually, Jen, bylaws won't deal with this type of topic.




Not even to give the power to the board to make the rules and regs? I just looked at our declaration and pets are not mentioned at all. They are not specifically mentioned in the by-laws either, unless I scanned them too quickly, but the by-laws do give the power to make rules and regs in general.

So with pets not being mentioned in the declaration, does that mean the rules and regs have no foundation? That is not snark, I am trying to understand what is being said here. I can get 4 dogs, 8 cats, and a pony and say that the declaration doesn't mention pets?
GeorgeS21
(Florida)

Posts:1243


10/16/2018 6:32 AM  
Jennifer,

R&Rs are granted by the Declaration/CCRs.

Bylaws provide community governance processes.
KerryL1
(California)

Posts:6403


10/16/2018 8:27 AM  
Good summary, George.

Soem folks thing the word "bylaws" has something to do with rules--THAT kind of laws. Jen isn't one of them though so far as I know.
JenniferG11
(Texas)

Posts:548


10/16/2018 9:55 AM  
Posted By KerryL1 on 10/16/2018 8:27 AM
Good summary, George.

Soem folks thing the word "bylaws" has something to do with rules--THAT kind of laws. Jen isn't one of them though so far as I know.




I'm not, you are correct, but in our docs, it's the by-laws that give power to the BOD to create/change R&Rs.

The Declaration and by-laws are silent on pets. I'm getting a pony :p
GeorgeS21
(Florida)

Posts:1243


10/16/2018 12:24 PM  
I would be surprised if Bylaws allowed R&Rs are enforceable.

Maybe as they relate to how the Association is managed/governed, but ....
JenniferG11
(Texas)

Posts:548


10/17/2018 4:12 AM  
Posted By GeorgeS21 on 10/16/2018 12:24 PM
I would be surprised if Bylaws allowed R&Rs are enforceable.

Maybe as they relate to how the Association is managed/governed, but ....




Maybe I am reading it wrongly, but in the by-laws, under duties and obligations, one of them is to make, establish, enforce, etc certain house rules that are necessary for the operation, USE, and OCCUPANCY of the Condominium project which may be amended from time to time.

My understanding is that is where the power to decide how many pets, of what type, etc. comes from, but I do admit I have not made a serious study of it.
KerryL1
(California)

Posts:6403


10/17/2018 8:55 AM  
That IS interesting, Jennifier. Our board's duties and obligations are in our declaration (CC&Rs), which I thought was common, but maybe not.
RoyalpitA


Posts:0


10/17/2018 10:39 AM  
Posted By JenniferG11 on 10/17/2018 4:12 AM
Posted By GeorgeS21 on 10/16/2018 12:24 PM
I would be surprised if Bylaws allowed R&Rs are enforceable.

Maybe as they relate to how the Association is managed/governed, but ....




Maybe I am reading it wrongly, but in the by-laws, under duties and obligations, one of them is to make, establish, enforce, etc certain house rules that are necessary for the operation, USE, and OCCUPANCY of the Condominium project which may be amended from time to time.

My understanding is that is where the power to decide how many pets, of what type, etc. comes from, but I do admit I have not made a serious study of it.




to repeat:

'Most' CCRs give the BOD power to establish R&Rs governing the 'common elements'.

If a private home (or townhouse) on public streets IMO no additional rules re: pets.

If a private home (or condo unit) abutting private roads or common hallways IMO the BOD may regulate the use of the common area.


Complex, not complicated.

GeorgeS21
(Florida)

Posts:1243


10/17/2018 11:57 AM  
While the Bylaws may have words like you note, I don't think something related to deeded restrictions that transfer by deed assignment and reassignment by sale can be included ... not sure there is a way to transfer restrictions like the via Bylaws.
JohnC46
(South Carolina)

Posts:8425


10/17/2018 12:49 PM  
Our R&Rs are filed with our docs. In the introduction to R&Rs, it says:

So and So Association is subject to Covenants and they are our primary governing doc...etc.....etc...the Covenants contain built in flexibility to allow the association to further refine operations of the association....etc....etc.....through Rules and Regulations. It says the same things about our Bylaws.


The way I see it, an R&R can clarify and restrict but cannot override a Covenant nor Bylaw.. Some examples:

1. The BOD cannot shut a pool down without owner approval but they can control the hours it is open via R&R.
Say open 7am to 8pm or say from 1pm to 2pm only. Big difference.

2. Can say what type fences are allowed if the Covenants allow fences. Cannot say no fences if fences are allowed via the Covenants.

3. Can set limits on pets (such as weight, breed, etc.) but if the Covenants allow pets, they cannot ban pets.


GenoS
(Florida)

Posts:3041


10/17/2018 3:15 PM  
Posted By KerryL1 on 10/17/2018 8:55 AM
That IS interesting, Jennifier. Our board's duties and obligations are in our declaration (CC&Rs), which I thought was common, but maybe not.

Common but not necessarily universal. Our bylaws contain a lot of language that I think should be in our CC&Rs. The "loophole" is that the CC&Rs say:

"All residences shall be subject to the provisions of the Articles of Incorporation of the Association and the By-Laws
thereof, and any amendments thereto and the terms thereof are expressly incorporated herein."

Explicit incorporation-by-reference in contracts is common although perhaps not for an HOA's governing documents. Then again, the relationship between homeowners and the association is a contractual one. That's how boards here have always explained it.
GimmeJ
(Georgia)

Posts:6


10/17/2018 7:01 PM  
No, I think board can't restrict Declaration's statements at all. Because otherwise Board could adopt such restrictive rules that in fact homeowners woudn't be able to exercise the rights given them by Declaration.
For example: homeowners are eligible to use pool but Board allowed to use it only 1 minute a day. Or homeowners can have dog but its weight is limited to 1 pound. In both cases Board didn't prohibit anything formally but in fact they did it. That is why any restrictions to Declaration should be adopted as amendment to Declaration by voting of all association members. Board shouldn't have right to change it on its own.
GimmeJ
(Georgia)

Posts:6


10/17/2018 7:22 PM  
My previous post was to JohnC46.
And I want to add that there is clear logic: if Covenants allow fences without any restrictions - that means any fences are allowed. And any attempt to restrict fences types by Rules would be in conflict with Covenants. Because Covenants would say "yes" while Rules would say "no".
JenniferG11
(Texas)

Posts:548


10/18/2018 9:05 AM  
Posted By GimmeJ on 10/17/2018 7:01 PM
No, I think board can't restrict Declaration's statements at all. Because otherwise Board could adopt such restrictive rules that in fact homeowners woudn't be able to exercise the rights given them by Declaration.
For example: homeowners are eligible to use pool but Board allowed to use it only 1 minute a day. Or homeowners can have dog but its weight is limited to 1 pound. In both cases Board didn't prohibit anything formally but in fact they did it. That is why any restrictions to Declaration should be adopted as amendment to Declaration by voting of all association members. Board shouldn't have right to change it on its own.




Taken to the other extreme, you are saying they can't make any rules at all. Someone could say the pool should be open 24 hours a day and they can have as many pets of any type as they want.

20 pounds is lower than I have usually seen, but it isn't analogous to 1 pound. How large is the dog you have or want to have? Is it considered an 'aggressive breed'? The type that are usually on banned lists? Doberman, GS, Akita, Chow, bully or boxer breeds, etc.?

Did the board change from a higher weight limit to a lower one?
GeorgeS21
(Florida)

Posts:1243


10/18/2018 3:03 PM  
Gimme,

If your CC&Rs allow the Board to make Rules and Regulations to cover the finer detail of your HOA, then I believe those R&Rs are considered to simply be an extension of the CC&Rs.

Now, if the R&Rs are NOT related, in any way, to components of the CC&Rs - then the circumstance is different.
RoyalpitA


Posts:0


10/18/2018 3:55 PM  
The question now becomes: What will the judge rule?
JohnC46
(South Carolina)

Posts:8425


10/18/2018 4:07 PM  
This is a good example of how things often end up in court when non-lawyer, level headed people disagree on the meaning of something.

Example:

Covenants allow 2 dogs per unit. All agree here.

BOD sets a weight/breed limit. All hell breaks loose here.
GeorgeS21
(Florida)

Posts:1243


10/18/2018 5:22 PM  
Yep - number of dogs is general, type of dog is personal.

But, rules should be rules.
RichardP13
(California)

Posts:3648


10/18/2018 5:32 PM  
Can the Board create rules limiting the weight of a pet, YES. Is the rule fair and reasonable and can you defend the rule in a court of law?

Been there, Done that
GimmeJ
(Georgia)

Posts:6


10/18/2018 6:51 PM  
JenniferG11
No, board can adopt many rules but that rules can't affect rights declared in CCR.
If we talk about dogs (if CCR allows to have dogs) board can fine for dog's barking, they can force owners to walk dog on leash, they can even prohibit walking dog on the property at all but they can't forbid residents from having any kind of dog.

If CCR tells that homeowners may swim in a pool (without any limits) Board can prohibit playing in water, sunbathing, smiling in the pool but they can't prohibit swimming even if someone wants to swim naked at night.

To make long story short:
1. CCR is like constitution. It declares basic rights and authority (board) can't override that rights.
2. If Board wants to adopt rule that contradicts ССR then they need to amend CCR by changing conflicting provision or cancelling it. In the latter case Board would be free to set any rules they need.

GeorgeS21
(Florida)

Posts:1243


10/18/2018 8:19 PM  
Gimme,

I’m not sure what your point is any longer, but my sense is that your feelings are affecting your logic and in the end your position will not be upheld.

I’m out.
JenniferG11
(Texas)

Posts:548


10/19/2018 10:34 AM  
Posted By GimmeJ on 10/18/2018 6:51 PM
JenniferG11
No, board can adopt many rules but that rules can't affect rights declared in CCR.
If we talk about dogs (if CCR allows to have dogs) board can fine for dog's barking, they can force owners to walk dog on leash, they can even prohibit walking dog on the property at all but they can't forbid residents from having any kind of dog.

If CCR tells that homeowners may swim in a pool (without any limits) Board can prohibit playing in water, sunbathing, smiling in the pool but they can't prohibit swimming even if someone wants to swim naked at night.

To make long story short:
1. CCR is like constitution. It declares basic rights and authority (board) can't override that rights.
2. If Board wants to adopt rule that contradicts ССR then they need to amend CCR by changing conflicting provision or cancelling it. In the latter case Board would be free to set any rules they need.





Yeah, no, that doesn't make any sense.
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