Bylaws that were not followed

PeggyH - You can attempt to have the bylaw violations corrected. That's a good first approach in a friendly way. You can notify the owners of the violation and see who corrects it. More than that if the violation has been in for some time, they may be grandfathered if more than a year has passed. I don't have anything official on that though. If things were done without the approval of the Board and the owner's modifications comply they need only document the modification to the Board for record keeping, albeit after the fact.

Your bylaws should speak to removal of Board members and the criteria, and procedure to follow for members not in good standing. Typically the Board has the power to remove an officer (Tres., Pres., VP, Sec.), but the Board member will still be on the Board, just as a Director.

If someone violates a rule in force at the time, and then is forgiven by the HOA at a later date, that is not a "grandfather" situation. That is allowing a violation to an HOA rule to stand. Big difference. If a new rule is put into effect which puts an existing owner into violation, then you may grandfather them in.

JoeW,

I know what you are saying and I agree. I just wanted to point out that the term of grandfathering is not appropriate in these types of cases, in which a HO clearly violates existing rules. Sorry to nit-pick but this situation hits close to home with me and our HOA.

Ok, now I am confused. I thought we were talking about owners making changes without permission. Even if the HOA retroactively gets them to file the permission form and this is approved, there was still a rule violation initially. If this continues, eventually someone will make a change that the HOA will not want to approve. Then you have a much harder time to fix things afterward.

If an Owner has a project existing today and they did not follow the CCR's section of Architectural Review, the 1st step would be for them to fill out the form and seek the review process. If at that time it is not incomplaince with the CCR's the board can make their determination.

MelissaP1 - Good information sans the caps lock. However the original post is clear. The owners got the approval of the Board which is, or was the developer.

You have a choice - you can require them to conform to the docs/rules and correct the problems or you can grant them an "exception" to them (not grandfather). An exception can be permanent or temporary (only in effect for the current owner and must be corrected at resale or renting of property). In either case, the board and owner should have the agreement in writing and have it on file. If it is a temporary exception, then it should be filed with the owners deed at the county, so a future owner would be made aware of it.

"Exceptions" to the docs/rules are should not be the norm. Generally exceptions are used for extenuating circumstances - i.e. an association has a "No Pet" rule, but the owner has a letter from his or her doctor requiring a "comfort animal"; the association has a 4' high fence rule, but the owner needs a 6' fence because they have a mentally handicapped child that tends to escape; etc. "Exceptions" should be considered whenever health or safety issues are concerned. "Exceptions" should always be recorded in the minutes as just that. This doesn't weaken your ability to enforce the docs/rules regarding the same issue in other circumstances.

In the past too many associations believed that if they granted a exception to the docs/rules, they would be unable to enforce them in the future. This "hold the line, no exceptions" policy has led to a lot of litigation, hard feelings, and in many cases, fines from the Fair Housing people. If you feel that you can reasonably grant "exceptions" (remember health and saftey) then they should be seriously considered.

In your case, it doesn't sound like any of the changes deal with health or safety issues, so you need to find out and/or decide whether requiring the owners, who had reason to believe their alterations were OK (lack of association telling them otherwise, other owners doing similar things), to comply with the docs/rules is feasible and reasonable. You need to consult with counsel as to how you would apply these standards and decide on the costs/benefits for either ignoring them or enforcing them. Then you need to communicate with all of the owners about your decision, why it was made now and what is going to happen. If you just start sending out violation notices, you're going to have one angry, divided association.

As for the VP, generally a member who is not in good standing cannot serve on the board. Check your docs to see if it addresses "members in good standing" in the assessment or voting areas. However. if neither your docs, nor state statutes address it, you might have to live with it until you can amend them.

Joe

Melissa, you stated above that most states don't allow for fines to be the basis of liens or foreclosures. Would you know, off-hand, if Illinois is one of those states or, where to begin looking to find that for Illinois HOAs. Thanks. -ReneeD

Our CCR say the following

Section 1 Commercial Use
No lot, unit or any part thereof shall be used for any business, commercial, manufactuting, mercantile, storing, vending, or other nonresidential purposes provided however that the Association shall have the right to provide or authorize such services on the Common Area as it deems appropriate for the enjoyment of the Common Area or for the benefit of the Members. Notwithstanding the foregoing, professional and administrative occupations without external evidence thereof, so long as such occupations are in conformance with local government ordinances, cause no associated pedistrian or vehicular traffic, and are merely incidental to the use of the Residental Dwelling as a single-family residence, shall not be considered to be in violation of this Section. Any commercial, manufacturing or other non residential uses are also subject to the regulations of the County."

I would like opinions on the above as it would relate to a member driving his work truck home and parking in the drive. The member uses this truck as their everyday truck He says he has 5 kids, 2 vehicles and drivers in his household. The homeowner has challanged the commercial truck parking but now the board has sent him a letter from their attorney that says the following:

"While the section listed allows for a "home office' THERE CAN NOT BE ANY EXTERNAL EVIDENCE THEREOF SUCH AS YOUR LARGE COMMERCIAL VEHICLE WHICH YOU REGULARLY PARK IN FRONT OF YOUR HOME.
Until such time that the business has been relocated from your home and credible proof thereof has been submitted to the Association you must continue to park the truck off-site.
A simple internet search reveals that your home address serves as the business address for your company on numerous websites. The proof of your business relocation will have to include among other things, evidence of an actual (new) physical location for your business (other than a mailing center or P O Box) and evidence that your address on these websites has been changed to reflect the address of your new office.
The fines will continue until this is done."

The homeowner then showed me proof that all he does is billing from his house. He never has had foot traffic, deliveries, signage, ect. He showed me copies of several city business licenses where he does his construction jobs and a letter from the postmaster stating he has had the same P.O. Box for 21 years. Does anyone else think our board has overstepped its authority? Thanks in advance for all opinions.

This says it all for me.

" "While the section listed allows for a "home office' THERE CAN NOT BE ANY EXTERNAL EVIDENCE THEREOF SUCH AS YOUR LARGE COMMERCIAL VEHICLE WHICH YOU REGULARLY PARK IN FRONT OF YOUR HOME.

Large commercial vehicle in driveway or in front of house.

At any rate, the commercial vehicle alone would be an issue, with or without an accompanying "home business."

The truck goes offsite.

period.

Bob when you first started posting it was because you were getting fined for "something" but the BOD wouldn't tell you what, then you admitted it was for your truck. In another you stated it was because the BOD said your truck was different but you said a truck is a truck. Now it's a large commercial vehicle. You can hem and haw all you want and try to spin it in your favor but at the end of the day it appears that you are in the wrong.

Besides your truck which is IMO in violation and you should be fined until you remove it; if you advertised your address as stated you also violated the "without external evidence thereof," clause. Whether or not the work is done on your property, also I would imagine your large commercial vehicle has a sign advertising what you do which may violate other covenants.

Bob said: "I am fine with the board enforcing trucks not being in driveways...as long as it is that way for all HO."

and even if you weren't fine with it, you would still have to comply.

If others truly are "getting away with it," then bring legal action and make them prove they are not.

And it doesn't really matter what sort of straw poll you did that says people may or may not know that trucks have to be parked in a certain unseen area, or that even xx number don't like it.

Unless you have the required number required to change the CC&Rs, it's a moot point.

I would love to see you run for the board and I would love to see you try to explain why, after YOU complain of "selective enforcement," that you won't be doing the same thing.

Something tells me that it is for "revenge" only and that you won't provide the due diligence, or even step up to the demand of appropriate "fiduciary duty" and enforce ALL restrictions equally against ALL in violation, even the CC&Rs with which you disagree.
It's not as easy as it sounds, especially if you don't patrol the neighborhood several times a day every day.

Then again, I could be wrong.

But I'd much rather you discover the joys of board directorship for yourself.

It always does my heart good to see people step up to the plate and put their time/energy/service where their mouths are.