MikeB3
(New Jersey)
Posts:28
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| 06/06/2008 8:44 AM |
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| Hi all. Our community has a Master Deed which imposes a specific set of restrictions on lot owner. One restriction is that fences are not allowed to be over 4 feet in height. Our Board intends to begin granting waivers to this restriction. Would this be a lawful act? There is no mention anywhere in the Master Deed or Bylaws regarding any kind of waiver. There is a description of how to change the restriction through a vote of members. Thanks in advance, Mike |
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EllenS1
(Florida)
Posts:321
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| 06/06/2008 8:52 AM |
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| The Board's responsibilities are to enforce the covenants and not change them for any reason without an amendment to the covenants voted on by whatever your docs say. If you have a management company I would ask them to notify the Board of this. If not, perhaps several owners should have a discussion with the board. If all else fails, I would pass out fliers to all owners letting them know what's happening. Better act fast before you start to see 6 foot high stockade fences appearing. |
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MikeB3
(New Jersey)
Posts:28
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| 06/06/2008 9:24 AM |
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| I'm planning a mass mailing so I want to make sure I have my facts straight. There is considerable disagreement as to whether or not a waiver is OK. Mostly people wanting fences saying that a waiver is lawful because the Board's power is absolute. |
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BruceF1
(Connecticut)
Posts:499
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| 06/06/2008 10:06 AM |
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| The board can do whatever it wants. That doesn't mean it will stand up in court if their decision is challenged. If the board chooses to grant a waiver to allow fences over 4 feet, and someone objects to a neighbor building a 6-ft high fence, claiming that the master deed limits fence heights to 4 feet, then, in a court challenge, the result could be that the board's decision to grant a waiver may be overturned. |
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BrianB
(California)
Posts:1591
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| 06/06/2008 11:19 AM |
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in general, no (with Bruce's caveat that yes they can as long as they don't mind being ruled against).
Imagine if a board granted a variance to a deeded property that they didn't have to belong to the HOA. I believe it can't be done, as the DEED is attached to the property at a higher level of law than the Board can effect. |
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EllenS1
(Florida)
Posts:321
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| 06/06/2008 11:28 AM |
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| I don't believe the Board's power is absolute. Your docs should spell out precisely what their duties are. If that were true they could just vote for or against any of the covenants at will. There is a reason why amending the covenants takes a certain percentage of owners to vote on any changes. It protects the integrity of the subdivision. I doubt owners who purchased there thought a handful of people could make changes for whatever reason. |
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EllenS1
(Florida)
Posts:321
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| 06/06/2008 11:34 AM |
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| It might help if someone told the Board that they better check to see if they are covered with D&O insurance..they may need it if they act in a way that threatens property values by granting a variance which I am sure they don't have the power to do. |
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MikeB3
(New Jersey)
Posts:28
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| 06/06/2008 11:57 AM |
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| The docs spell out a number of duties, but none of them include this type of variances. But there is nothing saying that they can't either. There is a clause that says that the Board shall have and exercise all lawful powers. My question is whether I can honestly petition that the power to grant waivers is not lawful. |
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EllenS1
(Florida)
Posts:321
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| 06/06/2008 12:08 PM |
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My feeling is that anything as important as variances would be in the docs if they were lawful. Why not contact whatever state regulatory agency that deals with hoas to see what they have to say.
Also, do you have a management company? If so, they should provide an answer. Management companies are usually regulated by the DPR much like realtors.
We all know there are good and poor management companies and, if you have one, this may be a good time to find out if they are worth what you are paying them. |
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MikeS1
(Virginia)
Posts:615
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| 06/06/2008 12:57 PM |
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| We recently ran into a similar situation, but as it turns out, the county zoning dept ruled on this issue and even though the HO didn't need a building permit, zoning laws prevented the HO from installing the higher fence. |
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MikeB3
(New Jersey)
Posts:28
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| 06/06/2008 1:01 PM |
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| We are self managed, 76 single family homes. I'm hoping to stay away from lawyers and courts and convince everyone that the rules should either be followed or changed. I would like to discourage people who want something from trying to use the Board to get special treatment for themselves rather than the harder job of trying to get their fellow residents to vote that what is good for them is good for everyone. |
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MaryA1
(Arizona)
Posts:1562
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| 06/07/2008 10:39 AM |
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Posted By MikeS1 on 06/06/2008 12:57 PM
We recently ran into a similar situation, but as it turns out, the county zoning dept ruled on this issue and even though the HO didn't need a building permit, zoning laws prevented the HO from installing the higher fence.
Mike,
As someone earlier stated, the board can do whatever they like; doesn't mean their action will hold up in court. Most assn docs give the board the authority to interpret the CCRs; however, their interpretation cannot change the meaning the of the restriction. Since the restriction specifically states the maximum height of the fence if the board were to grant a waiver allowing a higher fence they would definitely be changing the restriction; not merely interpreting it. IMO, the only recourse is to have the CCR restriction amended.
While it's certainly OK to rely on county code enforcement to take the pressure off the board, it should be remembered that the HOA's rules can be -- and in many instances are -- more restrictive than county code. So when a member says, the county says I can do it; doesn't mean the board must allow it. However, if the county code says you can't do something, the HOA rules cannot say you can! |
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GloriaM
(North Carolina)
Posts:768
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| 06/07/2008 1:32 PM |
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Mike:
If your Master Deed states fences can be 4' only then the board cannot allow 6' fences. You would need to amend the Master Deed to allow the 6' fence. If a HO let's say 2 years ago really wanted that 6' fence and was turned down because they had to follow the Master Deed, and now 6' fences are popping up everywhere.
This HO could challenge this in the court and she could win because the board didn't follow the amendment procedure. Again the courts want to see fair and reasonableness to everyone. |
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MikeB3
(New Jersey)
Posts:28
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| 06/07/2008 9:14 PM |
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| I wouldn't think that many members are interested in an outright repeal of the fence height restriction. I suppose what we are needing is an amendment to the Master Deed that gives the Board power to pass out waivers as they see fit. I thought things were bad enough around here but it looks like they are going to take a major turn for the worse. Thanks for everyone's input. |
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BrianB
(California)
Posts:1591
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| 06/07/2008 10:19 PM |
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| i don't see much difference in repealing the code and giving a board the power to ignore it at will. the end result will be the same, just much more costly for everyone to do it slowly through the board. |
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DonN
(Michigan)
Posts:221
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| 06/08/2008 7:54 AM |
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MikeB3
If you want to stay away from lawyers and the courts, then interpret the CC&Rs and the other governing documents strictly as written and resolve any ambiguities in favor of free use of property and against the party seeking enforcement — basically in favor of the owner. If the owners want to amend any of the documents, then do so. But the amendments must apply uniformly to all property units unless the amendment is approved by all owners.
Interpretation of CC&Rs (restrictive covenants) is a matter of law, not the judgment of the board. I suggest checking the case law in your state with regard to interpretation of restrictive covenants. There is a similarity of case law from state to state. As a example, I offer the following two quotations from Michigan case law.
". . . it is not “the function of the courts to strike down private property agreements and to readjust those property rights in accordance with what seems reasonable upon a detached judicial view.” Rather, absent some specific basis for finding them unlawful, courts cannot disregard private contracts and covenants in order to advance a particular social good. • • • “[w]e do not substitute our judgment for that of the parties, particularly where, as in the instant case, restrictive covenants are the means adopted by them to secure unto themselves the development of a uniform and desirable residential area.”" Citations omitted.
"Public policy favors use restrictions in residential deeds. Michigan courts generally enforce valid deed restrictions through injunction. There are three equitable exceptions to the general enforcement rule: (1) technical violations and absence of substantial injury, (2) changed conditions, and (3) limitations and laches. " Citations omitted.
I believe the board is obligated to enforce the CC&Rs as written. As stated above, the Michigan courts refuse to do other than enforce the CC&Rs as written. It is arrogant of any board to conclude that it can substitute its judgment for the agreement (contract) defined in the CC&Rs. |
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Don Nordeen
Governance of Property Owners Associations
http://swagman.typepad.com/poa_governance/ |
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KirkW1
(Texas)
Posts:686
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| 06/11/2008 8:13 PM |
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Sorry, but the devil is in the details. And you have not provided enough to know if the board is in a legal position or not. The question is, do the documents have a clause to allow board approved exceptions?
Either way, the board should be very careful. But they may have the authority to grant exceptions. Then the question comes to where is the line between granting needed exceptions and failing to enforce the covenants? |
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SusanW1
(Michigan)
Posts:1540
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| 06/12/2008 5:35 AM |
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Kirk is right. All powers of the Board must be listed in the governing documents.
Ask them by what authority do they have to grant exemptions to the Master Deed.
They have the burden of proof that they even have the power. |
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MikeB3
(New Jersey)
Posts:28
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| 06/13/2008 2:09 PM |
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| Bylaws state "the Board shall have and execute all lawful powers." Nothing said about waivers. Per DonN's excellent advice, I have read a lot of case law, but none from New Jersey because I would have to buy it. Now I understand why half the people I know are lawyers. |
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DonN
(Michigan)
Posts:221
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| 06/13/2008 2:50 PM |
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MikeB3
I found a webite that appears to access the court opinions at
http://www.judiciary.state.nj.us/opinions/index.htm. Click on "New Jersey Supreme Court and Appellate Court reported opinions" which should take you to a search page. I tried to access the Twin Rivers case and did so without paying a fee.
If you use Nexis/Lexis or one of the other commercial sources of case law, there is a fee.
Have fun reading the New Jersey cases. |
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Don Nordeen
Governance of Property Owners Associations
http://swagman.typepad.com/poa_governance/ |
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PaulM
(Pennsylvania)
Posts:1347
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| 06/13/2008 3:03 PM |
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MikeB3: Rather than focus on whether to grant waivers, why not just quote from the official and legal documents on how your association is to make amendments to the present documents. IF there is a restriction on fence height at 4' and (some) members want to install fences at a higher height, then consideration is to be given to the requests.
The way to approach making an amendment to the legally recorded documents is to learn if there is majority member interest for the change, whatever it is. If so, 1) revise present wording of the 'restriction' with an 'amendment'; 2) take member vote and document percentage needed to pass (according to documents, it may be as high as 75% of lot owners or more to pass; 3) if passed, legally record change with the local/state authorities, if necessary; 4) communicate the new amendment to all members in writing.
An amendment to the restrictions is to be approached with care and given the importance it deserves.
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KirkW1
(Texas)
Posts:686
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| 06/16/2008 2:16 PM |
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The thing is that you must read more then just the bylaws. You also have to look at the wording in the deed restrictions. And often they will refer to design guidelines. Now you have three levels of documents.
Generally, the board does not have the authority to issue waivers to the deed restrictions unless said power was granted in the deed restrictions. (It may have a statement that fences are limited to 4 feet in height except as permitted by the BOD.) But then again, perhaps it states the fence must conform to the design guidelines. And the design guidelines can often be changed a lot easier then the deed restrictions.
I personally believe that documents SHOULD give some leeway on such things. It comes to the idea that for every rule there is an exception (or could be). And while perhaps four foot fences should be the norm, you don't know that one person will never have a super strong reason for an exception. But if the exception becomes more of a rule, then the rule should be changed. |
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DonN
(Michigan)
Posts:221
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| 06/24/2008 3:22 PM |
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KirkW1
Who is the wise person who is going to exercise leeway? The CC&Rs and bylaws are contracts under the laws. As an owner and members, I should know my rights and benefits as well as obligations. One should mean what is written and act on what is written.
If you were entering into a contract with another person who was to provide something to you for a fee, should the other person have leeway on what is provided? Should you have leeway on how much you will pay?
Contracts and their interpretations are matters of law for the courts to decide. Courts decide on the basis of what is written with a set of rules for interpretation. Included in the set of rules are rules for impossibilities and other unforeseen circumstances. But courts decide. The court is the only wise person. |
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Don Nordeen
Governance of Property Owners Associations
http://swagman.typepad.com/poa_governance/ |
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KirkW1
(Texas)
Posts:686
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| 06/24/2008 8:04 PM |
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Don,
I am glad that my neighborhood's documents allow the BOD to make exceptions to the rules. I happen to believe that rules are designed for the general case. But it is impossible to foresee every potential situation. And perhaps my neighbor may get to do something that I am told no for. But I vote for the "wise people" who get to make the decisions. And i they prove to be unwise, I vote against them.
Yes, an HOA is a level of government oversight. And some of the laws have a very high standard to be changed. While others are more easily changed. I can live with that.
In my (not so humble) opinion, people need to educate themselves on property ownership. And find something they can live with. And while I may not like it, I may have to change where I live if I want to retain certain options. And I may need to change where I look for a home if I want to ensure nothing changes in the rules.
I have to say that some things about the HOA make me nervous. But then again, I also saw my father faced with a situation where they may have had to rely on neighbors donating money to fund a suit to protect properties. |
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