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Subject: Interpreting Covenants & Rules
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ArtB
(Florida)

Posts:2


11/07/2019 2:38 PM  
I am sure this may be true for every HOA but our HOA covenants have a number of gray areas

Who interprets the gray areas? The Board, a Committee? The Management Company or the HOA attorney?

Did your HOA ever issue guidance on how to stay in compliance?

Thanks



JohnC46
(South Carolina)

Posts:8827


11/07/2019 3:15 PM  
Art

Often the courts......
KerryL1
(California)

Posts:6703


11/07/2019 3:38 PM  
Usually rules & regs. are pretty straightforward, so I guess you're talking about your covenants? I'd seek explanation from the management company because some covenants that may look ambiguous to you might be common and your MC may have seen them or some of them in many other HOAs.

If there still are some that seem "gray," the HOA board would vote to have your HOA attorney write opinions on them. Some may be so common that, depending on your contract with the attorney, could be explained over the phone or via email for no charge or a minimal one.

Are you on the board, Art? What size is your HOA? Can you give the exact wording of two covenants that seem unclear. They might be familiar to some of us.

Your last sentence, Art, is: "Did your HOA ever issue guidance on how to stay in compliance?" This is unclear. Please rewrite with different words. Do you mean does my HOA say HOW to comply with our rules & regs? In our case it's usually built into the rule, i.e., "Residents are prohibited from parking in the Visitor Parking spaces.
SheliaH
(Indiana)

Posts:2749


11/07/2019 7:10 PM  
You can get a million answers to that question and every day get a new viewpoint t, depending on what's being discuszed. Writing rules and enforcing them is an art form because as the owners change and the board changes, some rules may not be as vital as they once were.

It may be best to take a look of the community and see if they understand what the cARs are and why they exist. Do they mundane the difference between them and rules enacted by the board? What do they think of enforcement and what rules of CCRs could use an update?

From there you may see which areas have caused the most drama and determine the best way to address it. Maybe you're trying to regulate too many areas (some things reAlly should be more about common courtesy, which is getting rated by the hour.). That could be a nice project for an advisory committee and then it an make recommendations to the board. The association attorney can also help you make sure the rules and CCRs line up with current local and state law. Every few years you can revisit the rules to see what can be added, dropped or tweaked.

This way, your documents can be more of a living documents rather than something that's too ridiculous to deal with.
MelissaP1
(Alabama)

Posts:8711


11/07/2019 8:28 PM  
This is why a Fining schedule is important to develop IF your HOA has the ability to fine. That is one of the biggest enforcement issues a HOA has. It may have the power to fine but lacks the definition. Let's say it's a violation to leave garbage cans out on the street on Fridays. How do you enforce if it's not defined or given an amount? It has to follow the state laws on fine limits.

Many states don't allow liens or foreclosures to be based on fines. There are some that do allow the person's dues to be applied to fines and not dues. Which then makes it look like not paying dues. It's a practice I do not agree with. However, there those HOA's that do this practice to be aware of.

Grey areas always exist with any laws. The HOA is NOT a law enforcement agency. It also doesn't live in a bubble of protection. So know the limits of the HOA when it comes to actual criminal/animal control issues. Don't take on the squabbles of neighbors as if it's a HOA thing.

Former HOA President
MarkW18
(Florida)

Posts:196


11/07/2019 9:33 PM  
Posted By MelissaP1 on 11/07/2019 8:28 PM
This is why a Fining schedule is important to develop IF your HOA has the ability to fine. That is one of the biggest enforcement issues a HOA has. It may have the power to fine but lacks the definition. Let's say it's a violation to leave garbage cans out on the street on Fridays. How do you enforce if it's not defined or given an amount? It has to follow the state laws on fine limits.

Many states don't allow liens or foreclosures to be based on fines. There are some that do allow the person's dues to be applied to fines and not dues. Which then makes it look like not paying dues. It's a practice I do not agree with. However, there those HOA's that do this practice to be aware of.

Grey areas always exist with any laws. The HOA is NOT a law enforcement agency. It also doesn't live in a bubble of protection. So know the limits of the HOA when it comes to actual criminal/animal control issues. Don't take on the squabbles of neighbors as if it's a HOA thing.



So having a fining schedule is the answer to "interpreting Covenants & Rules". Really??
MelissaP1
(Alabama)

Posts:8711


11/07/2019 9:45 PM  
Did not read the original post? Wanted to know how to keep in compliance. That takes a fining schedule.

Former HOA President
MarkW18
(Florida)

Posts:196


11/07/2019 9:49 PM  
Posted By MelissaP1 on 11/07/2019 9:45 PM
Did not read the original post? Wanted to know how to keep in compliance. That takes a fining schedule.



The question was, if there is a gray area, who interprets.
MelissaP1
(Alabama)

Posts:8711


11/07/2019 9:51 PM  
There is more at the end.. Fining schedule helps to black and white issues. Done.

Former HOA President
MarkW18
(Florida)

Posts:196


11/07/2019 9:54 PM  
Posted By MelissaP1 on 11/07/2019 9:51 PM
There is more at the end.. Fining schedule helps to black and white issues. Done.



I am in favor of executing people on their first violation. Insures it won't happen again.
SheliaH
(Indiana)

Posts:2749


11/08/2019 4:23 AM  
Dang tablet - let me try this again!

The problem with rules (and laws for that matter) is that it's impossible to know if there will be any grey areas or what they are. Sometimes a rule or CCR may be enacted or amended, but create another set of issues no one anticipated. I call Bylaws and CCRs living documents because as we grow and have different experiences, we change and what may have been important years ago no longer interests us. On the other hand, there may be new issues that the CCRs and Bylaws don't address AT ALL and depending on how serious it is, you may have to come up with a new policy to address it.

Take email for example. Years ago, everything was sent by snail mail and it still is, but there are people who get more and more of their information this way or online. We know there have been issues with people receiving all sorts of emails, which is why we have spam blockers, but if a HOA wants to move to email communication, how do you ensure you have the correct addresses or that the right person gets the information? What will you do about people without email - there are still people (like my 94 year old mother) who don't have internet access AT ALL. Those folks are still homeowners, so how do you ensure they get the information while controlling postage and printing costs?

Generally, I say the interpertation starts with the board, since rule enforcement is one of their duties - and you know how convoluted that can get. CCRs can be enforced by one homeowner against another, so if they can't figure out a way to fix their beef, it's off to court and let the judge decide. That's also why I like alternative dispute resolution - sometimes you need an inpartial third party to point out something no one noticed.

Since you're never address every little thing every time, this is why I suggest reviewing documents every 7-10 years to see if something needs updating, added or dropped. The association attorney can help with this and homeowners should be polled to see what they think - you may find no one's concerned about the "grey areas" or a few word changes make everything clear.

Finally, use some common sense - sometimes people will quibble and quibble over a few words and not focus on whatever it is the rules are supposed to address.
DonaldT4
(Massachusetts)

Posts:6


11/08/2019 7:48 AM  
ArtB:

The Board is the first line of deciding gray areas. Sometimes a Board will think it worthwhile to spend the money for the HOA's attorney's opinion on the matter. Be aware, though, that always asking for an attorney's opinion can get very costly, very quickly.

Also be aware that if an owner doesn't like the Board's decision, the owner can escalate the issue to the court, generally by bringing suit against the association. The courts (district/superior court, and then potentially the hierarchy of appeals courts) would have the final say.
GenoS
(Florida)

Posts:3328


11/08/2019 10:53 AM  
Posted By SheliaH on 11/08/2019 4:23 AM
CCRs can be enforced by one homeowner against another, so if they can't figure out a way to fix their beef, it's off to court and let the judge decide.

I asked a couple of months ago if anyone was aware of any instances where this happened. Theoretically, you're 100% right. I've told other people the exact same thing. I don't think it ever happens and I do wish there were more real-life examples of this occurring because it raises all sorts of gray-area questions on its own.
SheliaH
(Indiana)

Posts:2749


11/08/2019 11:45 AM  
Posted By GenoS on 11/08/2019 10:53 AM
Posted By SheliaH on 11/08/2019 4:23 AM
CCRs can be enforced by one homeowner against another, so if they can't figure out a way to fix their beef, it's off to court and let the judge decide.

I asked a couple of months ago if anyone was aware of any instances where this happened. Theoretically, you're 100% right. I've told other people the exact same thing. I don't think it ever happens and I do wish there were more real-life examples of this occurring because it raises all sorts of gray-area questions on its own.





At the end of the day, that's why I don't sweat too much over this because there are so.many.examples from different states and different sets of CCRs and board enacted rules and regulations that you'd go nuts trying to come up with a one size fit all answer. Not to mention the action, or lack thereof of various boards. The folks who took over at the start didn't care, the next group nit-picked over EVERYTHING and the third through fifth boards enforced some rules more than others.

In the end, it's probably best to look at all this stuff on a case by case basis. If you see the same coming up time and again, that's when you may want to take a closer look at that rule or CCR. Maybe some clarification is necessary - or you have a homeowner who's just stubborn and wants to see how far he/she can push the issue before the board (or neighbor) blinks.

And I still say some of this happens because some people want to legislate EVERYTHING when that's not necessary. We all know (well, some of us) the more rules you establish, the more work to enforce them, and the larger the CCRs and Bylaws. It's bad enough most homeowners (and board members, sadly) don't read what's there and look at the documents like a paper cafeteria - pay attention to the stuff you like and the hell with the rest. Why can't people just stop and think for a few moments and use common sense? Or at least count to 10 or 20 before before saying or doing something everyone, including you, may regret because "this is my house, damnnit and I'll whatever the hell I want!!!
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