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Subject: Applicability of State and Federal Law
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AlbertV1
(Pennsylvania)

Posts:1


09/01/2019 8:44 PM  
I am hearing feedback as a result of our HOA board's search for an attorney to work with our HOA in the future. One subject that came up is the applicability of state and federal laws. The condo POS and CC&R were recorded by the Declarant at the county recorder of deeds office in the county in which the condo is located.

The state of Pennsylvania passed Act 68 regarding condominiums in this state. I am also told that laws promulgated by the FHA may have some crossover to our HOA.

Feedback from one lawyer interviewed indicated that our CC&R take precedent over the state and federal laws. The laws can be used as guidelines if we wish, but compliance is not required. One of the explanations provided for this position is that our POS and CC&R are not filed on the state level but only the county level. If we were to file them at the state level then the state and federal laws would be enforceable.

If find this explanation unacceptable, but I do not want at this time to go out and seek a legal opinion at my own expense to dispute something that appears to be so incorrect.

I would like to hear from HOA representatives in PENNSYLVANIA regarding any experience you have had with laws as guidelines depending on where our POS and CC&R are recorded. If you are aware of the state office that does assume responsibility at the state level to receive registration of our POS or CC&R I would appreciate hearing what office that would be.

Thank you.
RichardP13


Posts:0


09/01/2019 8:49 PM  
Not from PA, but keep looking for an attorney. Federal and State codes will always take precedent UNTIL they say otherwise.
SheliaH
(Indiana)

Posts:2665


09/01/2019 9:52 PM  
What Richard said. Usually, the hierarchy goes like this:

Federal law
state law
local law (city and/or county ordinances)
your declaration
your bylaws
your CCRs

In some cases, there may not be legislation at all, but case law that a judge might use to decide an issue.

That's why I always say not everything in HOA land will be addressed because things evolve and change quickly - for example, HOA weren't really talking about making decisions via email instead of at a formal board meeting. Or electronic voting by homeowners at an annual meeting. Or AirBnB in the community.

Another example: you say your state just passed a law regarding condos, but you also need to check if it applies to ALL condos or only those established on or after a certain date. Little things like that can make a difference.

You didn't say what kind of attorney you spoke to, but you need to find one who specializes in HOA law and who has references you can check. Sometimes you won't find that in someone who says he or she specializes in real estate or corporate law. Try talking to someone in your local or state bar association and see if you can get a referral.

One more thing - most of us on this site aren't attorneys or live in your state, so for legal questions, you may have no choice but to pull out your wallet and talk to an attorney if you want to get an informed answer.
PaulJ6
(New York)

Posts:259


09/02/2019 3:47 AM  
Posted By AlbertV1 on 09/01/2019 8:44 PM
Feedback from one lawyer interviewed indicated that our CC&R take precedent over the state and federal laws. The laws can be used as guidelines if we wish, but compliance is not required. One of the explanations provided for this position is that our POS and CC&R are not filed on the state level but only the county level. If we were to file them at the state level then the state and federal laws would be enforceable.




I'm not a Pennsylvania HOA person but no Pennsylania-specific response is needed. The feedback that the lawyer gave is so nonsensical and moronic that I question the person's basic competence. Of course the lawyer is wrong.
PaulJ6
(New York)

Posts:259


09/02/2019 3:47 AM  
Posted By AlbertV1 on 09/01/2019 8:44 PM
Feedback from one lawyer interviewed indicated that our CC&R take precedent over the state and federal laws. The laws can be used as guidelines if we wish, but compliance is not required. One of the explanations provided for this position is that our POS and CC&R are not filed on the state level but only the county level. If we were to file them at the state level then the state and federal laws would be enforceable.




I'm not a Pennsylvania HOA person but no Pennsylania-specific response is needed. The feedback that the lawyer gave is so nonsensical and moronic that I question the person's basic competence. Of course the lawyer is wrong.
PaulJ6
(New York)

Posts:259


09/02/2019 4:25 AM  
Sorry for the duplicate post above. I agree with the posts before mine.

In addition, when you look for a lawyer, ask LAWYERS for recommendations. What they say about another lawyer should carry more weight than what a non-lawyer says. Sometimes a lawyer can come across to a nonlawyer as very polished and confident, but other lawyers can know that the person doesn't have a clue about the law. You don't want someone like that. Nor does someone who writes a lot of articles or gets a publicity make the best lawyer--that just means that the person is good at self-promotion, which doesn't mean that the person knows anything about the law. The best lawyer is the person with the most experience in a field; I'd rank that before educational background or personality, definitely. I also prefer lawyers who work in firms, since no one person knows everything and a lawyer in a firm has colleagues that s/he can check with on new areas.
PestY
(South Carolina)

Posts:118


09/02/2019 5:00 AM  
Posted By PaulJ6 on 09/02/2019 3:47 AM
Posted By AlbertV1 on 09/01/2019 8:44 PM
Feedback from one lawyer interviewed indicated that our CC&R take precedent over the state and federal laws. The laws can be used as guidelines if we wish, but compliance is not required. One of the explanations provided for this position is that our POS and CC&R are not filed on the state level but only the county level. If we were to file them at the state level then the state and federal laws would be enforceable.




I'm not a Pennsylvania HOA person but no Pennsylania-specific response is needed. The feedback that the lawyer gave is so nonsensical and moronic that I question the person's basic competence. Of course the lawyer is wrong.





CORRECT


D'OH
NpS
(Pennsylvania)

Posts:3655


09/02/2019 6:39 AM  
Posted By PaulJ6 on 09/02/2019 3:47 AM
I'm not a Pennsylvania HOA person but no Pennsylania-specific response is needed. The feedback that the lawyer gave is so nonsensical and moronic that I question the person's basic competence. Of course the lawyer is wrong.


From PA. Agree with Paul.


Sikubali jukumu. Read all posts at your own risk.
AugustinD


Posts:1898


09/02/2019 10:09 PM  
Posted By AlbertV1 on 09/01/2019 8:44 PM
Feedback from one lawyer interviewed indicated that our CC&R take precedent over the state and federal laws. The laws can be used as guidelines if we wish, but compliance is not required. One of the explanations provided for this position is that our POS and CC&R are not filed on the state level but only the county level. If we were to file them at the state level then the state and federal laws would be enforceable.


I wonder whether a misunderstanding took place. Before I could comment with any intelligence, I would need examples of when this attorney thinks the CC&Rs trump state and federal law.
PestY
(South Carolina)

Posts:118


09/03/2019 4:37 AM  
Posted By AugustinD on 09/02/2019 10:09 PM
Posted By AlbertV1 on 09/01/2019 8:44 PM
Feedback from one lawyer interviewed indicated that our CC&R take precedent over the state and federal laws. The laws can be used as guidelines if we wish, but compliance is not required. One of the explanations provided for this position is that our POS and CC&R are not filed on the state level but only the county level. If we were to file them at the state level then the state and federal laws would be enforceable.


I wonder whether a misunderstanding took place. Before I could comment with any intelligence, I would need examples of when this attorney thinks the CC&Rs trump state and federal law.





If, and only IF, state and federal (or other) law specifically DEFERS to the CCRs; the CCRs may be more, or less, restrictive, BUT, said CCRs may never 'trump' the law.


else


The law may be circumvented merely by contractual arrangement.
SteveM9
(Massachusetts)

Posts:3329


09/03/2019 5:41 AM  
One of the explanations provided for this position is that our POS and CC&R are not filed on the state level but only the county level. If we were to file them at the state level then the state and federal laws would be enforceable.


That doesn't even make sense. You dont submit deed/hoa records to be recorded with the state, you submit them to the county.

You dont need to change or rewrite your CCR's with a lawyer and refile them every time state or federal law changes, you simply cannot enforce that thing in your CCR's that violates it.

Lets say your deed/ccr says no black people allowed from 200 years ago. And federal law says you cannot do that. You dont need to change every deed of every house and re-record it or new CCR's, you simply cannot enforce it. Basically, you simply ignore that sentence and carry on with your life.
JohnC46
(South Carolina)

Posts:8647


09/03/2019 9:36 AM  
Posted By AugustinD on 09/02/2019 10:09 PM
Posted By AlbertV1 on 09/01/2019 8:44 PM
Feedback from one lawyer interviewed indicated that our CC&R take precedent over the state and federal laws. The laws can be used as guidelines if we wish, but compliance is not required. One of the explanations provided for this position is that our POS and CC&R are not filed on the state level but only the county level. If we were to file them at the state level then the state and federal laws would be enforceable.


I wonder whether a misunderstanding took place. Before I could comment with any intelligence, I would need examples of when this attorney thinks the CC&Rs trump state and federal law.




I agree. The advice was so blatantly bad, I think there was a misunderstanding.
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