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CharlesH9
(Michigan)

Posts:82

08/02/2008 8:26 PM
elected to enforce the CCr's and not have any rules or regulations? The reason I am asking this is that several people in our association have wanted to not have an association and I didn't think that was possible so I was brainstorming alternatives. Alot of people don't like the rules such as this many trees, no solar lights, this and that regading playscapes, portable basketball hoops, pets, etc. You get the idea. So if we can't get rid of the association or ammend the CCR's for 15 years, (which include a few restrictions regarding pools, sheds, fences and house size) could we do something about the other things that seem arbitrary depending on who the board is? This BOD decided 2 trees and 10 shrubs, then changed their mind to 1 tree and 5 shrubs, the next one could decide something else right? The rules could be continuously changing depending on the BOD since they don't need to consult the homeowners to make rules and regulations. So let me here everyone's input, you guys are a wealth of information for me.

GeorgerwilliamsW
(Indiana)

Posts:768

08/03/2008 4:16 AM
Posted By CharlesH9 on 08/02/2008 8:26 PM elected to enforce the CCr's and not have any rules or regulations? The reason I am asking this is that several people in our association have wanted to not have an association and I didn't think that was possible so I was brainstorming alternatives. Alot of people don't like the rules such as this many trees, no solar lights, this and that regading playscapes, portable basketball hoops, pets, etc. You get the idea. So if we can't get rid of the association or ammend the CCR's for 15 years, (which include a few restrictions regarding pools, sheds, fences and house size) could we do something about the other things that seem arbitrary depending on who the board is? This BOD decided 2 trees and 10 shrubs, then changed their mind to 1 tree and 5 shrubs, the next one could decide something else right? The rules could be continuously changing depending on the BOD since they don't need to consult the homeowners to make rules and regulations. So let me here everyone's input, you guys are a wealth of information for me. Charles, This is an incredibly insightful question. The short answer is, I am sure, YES. It could probably be done through a provision in the bylaws, rather than a more complex process of amending the covenants. Couple of thoughts: Deconstructing our concept of homeowners associations enables us to focus on what they actually do. The two functions are (1) ownership and maintenance of common property and (2) enforcement of covenants. The first, ownership of common property, is fairly straight forward. The second is where nearly all of the problems and conflict arise. To empower a board of directors to enact rules over and above the covenants a huge and dangerous delegation of authority. It is particularly egregious without an administrative appeals process. Most government agencies that make their own rules have an internal appeals process that must be exhausted before a lawsuit can be filed. You might be able to enlist sufficient support to amend the bylaws to require a 2/3 vote of all homeowners to pass or amend any rules. (You should also include in the bylaw provision a provision that also requires a 2/3rds vote to amend or to delete the provision.) Boards should always err on the side of restraint. They are not the covenant police. Often, no action is the best course. Many covenants empower individual homeowners, as well as the association itself, to bring enforcement lawsuits. Particularly, when violations affect only a small number of homeowners, the association should not get involved. I am sure there will be additional good thoughts for you as well. Good luck. It is a reasonable objective. I hope you may be able to make it happen.

SusanW1
(Michigan)

Posts:2316

08/03/2008 5:44 AM
Absolutely; youe association can recind any rules and regulations, bylaws and CCRs (when you are able) within the guidelines of your documents. The HOA can go down to bare bones in terms of regulations. (Thomsas Jefferson said "That government which governs least, governs best.") However, you might want to look at your subdivision and see WHY people chose to live there. Apparently, they wanted some kind of structure in the subdivision and uniformity of design, color and how the entire neighborhood looks. Do you really want a bright purple house next to you?

BradP
(Kansas)

Posts:1742

08/03/2008 6:38 AM
Charles: You guys can do whatever you want...However be careful with that...as Susan said do you want a bright purple house next to you or a rusted chain link fence? To me it isn't the covenants that are the problem, it is board members who don't know what they are doing and refuse or are afraid to enforce them and it is other members of the community that are apathetic and don't care. I agree that HOA's are about people, but it is about protecting the interests of the people as a whole. You may have one or two people that like having a bright purple house, but the majority wouldn't like to see it, whose interests are you going to protect and why are you there? To me it is a dangerous game to play to ignore obvious covenant violations just because they are not hurting people. Those people should be reminded that they signed up for this and knew what they were getting into before they bought, they had options, they chose this route, now they need to live with it.

CharlesH9
(Michigan)

Posts:82

08/03/2008 6:50 AM
I think an ammendment to the by-laws is certainly an idea worth entertaining. Right now the board changes rules themselves without involvement from the HO's. There could be an ammendment to say every rule change must have a 2/3 passing vote. At least the HO's would know that a rule may get changed unlike now when they aren't sure what the rules are. Could we also put in the by-laws that any rule that is changed will be distributed to the HO's within a certain amount of time? Any vote that is taken has to be passed by a certain date? etc. I think people chose to live here because you get ALOT of house for the money and the school district is great. There are no less than 100 children here in 60 some houses. In the last 18 months, at least 8 babies have been born. My daughter started kindergarted with 9 other kids last fall. Also I was told by the builder (acutally the sales rep), not the developer that all the rules could be changed, like the swimming pools, only to find out that they can't be for 15 years. So that was a mistake on my part and now I just live within the rules. I don't have a problem following the guidelines, actually I'm one of the few who pretty much follow it to the letter. I think most of the rules are reasonable, but I don't care for how they're made and the lack of communication. I would say 10% really like the rules, 25% hate them (and the HOA) and the rest don't care. It's the 25% that would like to see the HOA go away, but that isn't happening. The only common areas we have are the front enterance and a strip of land from the main road to a fence behind some peoples homes. So those areas we maintain (kind of).

CharlesH9
(Michigan)

Posts:82

08/03/2008 6:55 AM
I am not sure that CCR violations are ignored other than the 1 house that was allowed to put up a fence that doesn't meet the standards of the CCR's. That person had permission from the BOD so now what? Sue that HO? Sue the BOD?

MaryA1
(Arizona)

Posts:2498

08/03/2008 7:00 AM
Posted By CharlesH9 on 08/02/2008 8:26 PM elected to enforce the CCr's and not have any rules or regulations? The reason I am asking this is that several people in our association have wanted to not have an association and I didn't think that was possible so I was brainstorming alternatives. Alot of people don't like the rules such as this many trees, no solar lights, this and that regading playscapes, portable basketball hoops, pets, etc. You get the idea. So if we can't get rid of the association or ammend the CCR's for 15 years, (which include a few restrictions regarding pools, sheds, fences and house size) could we do something about the other things that seem arbitrary depending on who the board is? This BOD decided 2 trees and 10 shrubs, then changed their mind to 1 tree and 5 shrubs, the next one could decide something else right? The rules could be continuously changing depending on the BOD since they don't need to consult the homeowners to make rules and regulations. So let me here everyone's input, you guys are a wealth of information for me. Charles, Yes, you can amend the CCRs or whatever gov. doc. gives the power to the board to adopt rules and regulations. However, I don't know that that would be a wise thing to do as there are many instances when adopting a rule is the only avenue open to the board to address certain issues. As we all know it's very difficult to amend the CCRs considering the high vote % requirement in most docs. It's always been my opinion that the board adopted rules and regs cause more problems than the CCRs. And, of course, one big problem is that they can be changed each time there is a turnover on the board; which is what seems to be happening in your assn. I don't know that there's a solution to this problem. Boards should always to open to the suggestions of the members and I've always felt the board adopted rules should receive a vote of the members. But, of course, that is not always the process required. Sorry, I can't offer a good solution to this problem. :-( Why do you think you can't amend the CCRs for 15 years? I think we may have discussed this on another thread. I remember posting my CCR amendment requirement which says: "As amended and supplemented from time to time, this declaration shall continue in full force for a period of 20 years." But I don't recall your response. How exactly do your CCRs read that gives you this impression?

GeorgerwilliamsW
(Indiana)

Posts:768

08/03/2008 7:13 AM
Charles, Procedural question: Is it the rules that cannot be changed for 15 years, or is it the covenants? Typically, rules can be set or changed by the board according to provisions in the bylaws. Covenants are much harder to change. And when you attempt to change the covenants, you gotta' worry about mortgage lenders--they may have a say in which can be changed and what can't. (In that regard, see if your covenants have a section entitled something like, "rights of first mortgage holders." I believe, but I am not sure, that the FHA requires certain language to be contained in covenants if they are to make loans for properties in the community.) It is all about what the law is in Michigan. Susan is from Michigan; she probably knows more about Michigan laws in this regard than anybody else. And there is the issue of proportionality in the actual enforcement of covenants. You may not want your neighbor to paint the house purple, but what about the front door? Some reasonableness and leeway makes for a better neighborhood. From what I am learning and have learned, most people buy a home without understanding the nature of covenants or understanding the role of a homeowners association. It is only after buying do they realize the benefits and issues of being in a covenant community. Sometimes it is only after running up against a rule or covenant issue (with the dreaded "letter from the board"), do they even bother to understand what they can't do.

CharlesH9
(Michigan)

Posts:82

08/03/2008 7:21 AM
Mary, Here is the decleration clause This Declaration runs with the land and will be a burden on and benefit to the Developer, its successors and assigns and any person with an interest in a Lot for 15 years from the date it is recorded. At that time, the restrictions will be Automatically extended for 5 successive periods unless a majority of the Current homeowners of lots sign and record an instrument changing them except Section 11 thereof which shall not be amended. Section 11 is about a flood plan area that can't have basements by a river. The by-laws can be ammended by a 2/3 vote.

MaryA1
(Arizona)

Posts:2498

08/03/2008 7:40 AM
Charles, Thx! It doesn't say it can't be amended during that initial 15 year period. Do you have an amendment clause? Does it say it only applies after the initial 15 year period?

SusanW1
(Michigan)

Posts:2316

08/03/2008 10:14 AM
You have 15 years FROM THE DATE OF THEM BEING RECORDED, then a renewal every 5 years. But this just is the renewal of the Association itself, with the CCR attached. In the meantime, there MUST be a way to amend them at any time. This is a link to a Michigan expert on condo and HOA laws. (Michigan has very weak legislation in both of these areas.) http://www.communityassociations.net/michiganlaw/

CharlesH9
(Michigan)

Posts:82

08/03/2008 10:40 AM
They were recorded in 2004 and the CCR's includes some restrictions on house size, pools, fences, sheds and a couple other things. The only other ammendment clause is in the by-laws for changing the by-laws. This development was suppose to be 3 phases and over 300 houses. Something happened and it stopped in phase 1 with just the 60 some houses and the HOA took possesion in 2006.

CharlesH9
(Michigan)

Posts:82

08/03/2008 10:43 AM
It says after 15 years it can be ammended with a majority vote. I have spoke to some people here in Michigan that don't think this is that uncommon. One lawyer told me, (I just called for this question) that the CCR's were just about to expire where he lived. So he knew the part of waiting so many years before they could be ammended.

GeorgerwilliamsW
(Indiana)

Posts:768

08/03/2008 11:45 AM
Posted By CharlesH9 on 08/03/2008 10:43 AM It says after 15 years it can be ammended with a majority vote. I have spoke to some people here in Michigan that don't think this is that uncommon. One lawyer told me, (I just called for this question) that the CCR's were just about to expire where he lived. So he knew the part of waiting so many years before they could be ammended. Charles, Here is a pretty standard clause in covenants from Hoosierland: "The covenants and restrictions contained in this Declaration shall run with and bind the land and shall inure to the benefit of and be enforceable by the Declarant, the Association or the Owner of any Lot subject to this Declaration, their respective personal representatives, heirs, successors and assigns, for an initial term commencing on the date this Declaration is recorded and ending January 1, 2012, after which time the covenants and restrictions shall be automatically renewed for successive periods of ten (10) years each, as the same may be amended or modified as herein permitted and provided. It has nothing to do with the homeowners association--just with the covenants. The association continues in existence as a perpetual corporation, retaining ownership of the common property.

KirkW1
(Texas)

Posts:1190

08/03/2008 12:14 PM
You should be able to amend your by-laws before the 15 year period is up. If you want to put some restrictions on what the board can do, then I would suggest that you consider one of two routes: 1) Simply require ratification by the majority of members who vote in an election meeting the quorum requirement of your annual meetings. 2) Allow for any rule change to be set for ratification by a vote similar to above in the event that 10% of the homeowners sign a petition calling for said ratification. Number two will give much more leeway while still allowing the ownership to reign in the board at any time. Option 1 will slow rule changes down dramatically but could hamper some responsive type rules (not always bad in itself). But I would allow for said rule ratification by a majority of people present in a properly called meeting. Or you could go with a 2/3 majority. But make the requirement of those represented in a duly called meeting instead of all owners. The thing is that when you require a majority of all owners, then the bar becomes quite high as many owners won't bother to participate. Most people are quite apathetic.

CharlesH9
(Michigan)

Posts:82

08/03/2008 12:41 PM
George, I think this is similar to what we have. I don't think the decleration is so much about the existence of the HOA as it is about the restrictions. The HOA is a non profit corporation. But I am not sure about all of the legal stuff with the continuation of the association with respect to the little bit of common area there is. But it is my thought from reading your post, that this is similiar.

CharlesH9
(Michigan)

Posts:82

08/03/2008 12:43 PM
I like the ideas to ammend the by-laws with respect to restricting what the board can do without HO's approval and their lack of communication. I'll share that with my neighbors and we'll see who'll step up to the plate to try and get something passes by 2/3 majority to start out with.

hoatalk

Posts:490

08/04/2008 5:50 AM
Posted By GeorgerwilliamsW on 08/03/2008 7:13 AM Charles, From what I am learning and have learned, most people buy a home without understanding the nature of covenants or understanding the role of a homeowners association. It is only after buying do they realize the benefits and issues of being in a covenant community. Sometimes it is only after running up against a rule or covenant issue (with the dreaded "letter from the board"), do they even bother to understand what they can't do. I believe in many cases they buy into the benefits of the HOA without knowing it. What do I mean? They drive through the community and see the result of a good HOA....well kept yards with no trashy or tacky 'stuff' in them. Pretty homes with colors that blend together. The buyer thinks, "What a beautiful place! I want to live here". Then they drive past walking trails, a community green, playground or maybe see families happily playing in the pool and think they would love to have all these amenities. So our prospective buyer is seeing all the HOA benefits even if they don't know what a HOA is. Maybe they are buying because there is a HOA and maybe they are looking for a HOA community without even knowing it.

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SusanW1
(Michigan)

Posts:2316

08/04/2008 4:03 PM
Here's how I see it: The Declaration Clause ESTABLISHES the unique nature of the property and the HOA, as a not-for-profit corporation with common areas and special CCRs. After 15 years, the corporation is renewed EXCEPT if the members want to disband it (throw in the towel, sell off the common areas, and disband the corporation) Then every 5 years, it is up for renewal again. I don't think this has anything to do with the HOA ability to amend the CCRs (except that one particular one) or the bylaws. Our HOA had a 60 year renewal. We just all voted YEA at the annual meeting to keep our HOA.

MaryA1
(Arizona)

Posts:2498

08/04/2008 4:10 PM
Posted By CharlesH9 on 08/03/2008 10:43 AM It says after 15 years it can be ammended with a majority vote. I have spoke to some people here in Michigan that don't think this is that uncommon. One lawyer told me, (I just called for this question) that the CCR's were just about to expire where he lived. So he knew the part of waiting so many years before they could be ammended. Charles, Can you post, verbatim, that amendment clause? I just find it very unusual that you would have to wait 15 years to amend the CCRs. Maybe it's a Michigan thing! LOL

CharlesH9
(Michigan)

Posts:82

08/04/2008 7:33 PM
Mary, Here it is again: This Decleration runs with the land and will be a burden on and benefit to the developer, its succcssors and assigns and any person with an interest in a Lot for 15 years from the date it is recorded. At that time, the restictions will be automatically extended for successive 5-year periods unless a majority of the current owners of lots sign and record an instrument changing them. except Section 11 hereof which may not be amended,

MaryA1
(Arizona)

Posts:2498

08/04/2008 9:31 PM
Posted By CharlesH9 on 08/04/2008 7:33 PM Mary, Here it is again: This Decleration runs with the land and will be a burden on and benefit to the developer, its succcssors and assigns and any person with an interest in a Lot for 15 years from the date it is recorded. At that time, the restictions will be automatically extended for successive 5-year periods unless a majority of the current owners of lots sign and record an instrument changing them. except Section 11 hereof which may not be amended, Charles, I read that the first time you posted it. What I asked for was the amendment clause, in response to your message in which you stated: "Posted By CharlesH9 on 08/03/2008 10:43 AM It says after 15 years it can be ammended with a majority vote. I have spoke to some people here in Michigan that don't think this is that uncommon. One lawyer told me, (I just called for this question) that the CCR's were just about to expire where he lived. So he knew the part of waiting so many years before they could be ammended." My CCRs have and article which addresses "Terms, Amendments and Termination". What you keep posting the is the article addressing the "TERM" of the CCRs. What I'm talking about is the article addressing "Amendments" to the CCRs. Surely you have such an article in the CCRs, don't you?

GlenL
(Ohio)

Posts:1466

08/04/2008 11:08 PM
Charles, Mary is talking about a section specifically telling you how the documents may be amended. I've included ours from our COA so you can see the type of language we're looking for. Section 14.15. Amendment of Declaration and By-Laws. This Declaration and the By-Laws attached hereto as Exhibit C may be amended upon the filing for record with the Recorder of County, of an instrument in writing setting forth specifically the item or items to be amended and any new matter to be added, which instrument shall have been duly executed by the Unit owners entitled to exercise at least seventy-five percent (75%) of the voting power of the Association. Such Amendment must be executed with the same formalities as this instrument and must refer to the volume and page in which this instrument and its attached exhibits are recorded and must contain an affidavit by the President of the Association that a copy of the amendment has been mailed by certified mail to all mortgagees having bona fide liens of record against any Unit ownership. No amendment shall have any effect, however, upon a bona fide first mortgagee until the written consent to such amendment of such mortgagee has been secured. Such consents shall be retained by the Secretary of the Association and his certification in the instrument of amendment as to the names of the consenting and non-consenting mortgagees of the various Units shall be sufficient for reliance by the general public. If less than all mortgagees consent to an amendment to this Declaration and / or the By-Laws attached hereto as Exhibit C said amendment or modification shall nevertheless be valid among the Unit Owners, inter sese, provided that the rights of a non-consenting mortgagee shall not be derogated thereby. No provision in this Declaration or By-Laws attached hereto as Exhibit C may be changed, modified or rescinded, which, after such change, modification or rescission would conflict with the provisions of Chapter 5311, Ohio Revised Code, nor may any amendment be made to the percentage interests set forth in Section 3.3(B) without the prior unanimous approval of all Unit owners and their respective mortgagees, except as provided in Article of this Declaration.

CharlesH9
(Michigan)

Posts:82

08/05/2008 2:44 AM
This is it, it is under a section called miscellaneous. We must have a bad connection, you and I. You keep asking for something that I think I keep posting but it's not what your asking for, sorry. Funny how reading posts gets confusing.

CharlesH9
(Michigan)

Posts:82

08/05/2008 2:51 AM
Here is the by-law ammendment clause: As you can see, they are for ammending the by-laws and nothing is said of the decleration other than the clause in it pertaining to ammending in 15 years. ARTICLE IX AMENDMENTS Section 1. Proposal. Amendments to these Bylaws may be proposed by the Board of Directors of the Association acting upon the vote of the majority of the Directors or may be proposed by 1/3 or more of the Members by instrument in writing signed by them. Section 2. Meeting. Upon any such amendment being proposed, a meeting for consideration of the same shall be duly called in accordance with the provisions of these Bylaws. Section 3. Voting. These Bylaws may be amended by the Members at any regular annual meeting or a special meeting called for such purpose by an affirmative vote of not less than 66-2/3% of all Members. No consent of mortgagees shall be required to amend these Bylaws unless such amendment would materially alter or change the rights of such mortgagees, in which event the approval of 66-2/3% first mortgagees shall be required with each mortgagee to have one vote for each mortgage held. Section 4. By Developer. Pursuant to Section 90(1) of the Act, the Developerhereby reserves the right, on behalf of itself and on behalf of the Association, to amend these Bylaws without approval of any Member or mortgagee unless the amendment would materially alter or change the rights of a Member or Mortgagee, in which event mortgagee consent shall be required as provided in Section 3 above.

CharlesH9
(Michigan)

Posts:82

08/05/2008 2:58 AM
So the stuff in the CCR regarding house size, pools, sheds, fences, pets, garden walls, nuisances, etc. in it gets ammended differently? Is the particular one you're speaking of section 11 that I posted in the ammendment clause that may never be ammended. It is about building in the floodplain.

MaryA1
(Arizona)

Posts:2498

08/05/2008 5:12 AM
Posted By CharlesH9 on 08/05/2008 2:58 AM So the stuff in the CCR regarding house size, pools, sheds, fences, pets, garden walls, nuisances, etc. in it gets ammended differently? Is the particular one you're speaking of section 11 that I posted in the ammendment clause that may never be ammended. It is about building in the floodplain. Posted By CharlesH9 on 08/05/2008 2:58 AM So the stuff in the CCR regarding house size, pools, sheds, fences, pets, garden walls, nuisances, etc. in it gets ammended differently? Is the particular one you're speaking of section 11 that I posted in the ammendment clause that may never be ammended. It is about building in the floodplain. Charles, The bylaws and the CCRs are two different documents and each is amended as outlined in each specific document. There should be an amendment procedure in the CCRs, similiar to the one posted for your bylaws. If there isn't, then someone (the declarant or his attorney) really goofed, IMO. And, no the amendment clause I'm speaking of is not the "Section 11" you posted previously. As I stated earlier, that clause speaks specifically to the "term" of the CCRs and how ONLY the term may be amended; it does not address amending the CCRs. There are many reasons for amending the CCRs, not just to continue or change the term. If there is no amendment clause in your CCRs then even after 15 years, no other provision of the CCRs can be amended and I find this extremely strange and a gross oversight. However, if, in fact, this is the case I would certainly recommend the BOD consulting an attorney to find out if an amendment provision can be added to the CCRs. (Unless there is something in MI law that I'm not aware of!)

CharlesH9
(Michigan)

Posts:82

08/05/2008 5:40 AM
What I posted above is the ammendment procedure/provision/clause. After 15 years you can vote to ammend/change the shed size, the type of pool etc(which I thought were the restrictions) mentioned in the decleration. Section 11 (is only applicable to about 10-15 houses, the lot numbers are listed in the decleration) can't be ammended without going through some Michigan department of water quality or something pertaining to the floodplain that some houses reside in and can't have basements. So I could tell the members they may want to look into what to do within the rules that they do have some control of through the board? Am I really confused, I'm thinking I'm not getting something here?

MaryA1
(Arizona)

Posts:2498

08/05/2008 5:47 AM
Charles, You asked: "Am I really confused, I'm thinking I'm not getting something here?" That makes two of us! LOL I'm thinking now that I can't make an educated guess on anything w/o seeing the whole copy of your CCRs! If you are a board member, Charles, I would suggest consulting an attorney for a full review of the CCRs. If you're not a board member and would still like our opinions, then my only suggestion would be to copy, vertabim, the whole section 11, not just the portion you've copied several times. I'm thinking there's more to the section than we're aware of.

TracyT
(Maryland)

Posts:220

08/05/2008 2:06 PM
Posted By CharlesH9 on 08/03/2008 7:21 AM Mary, Here is the decleration clause This Declaration runs with the land and will be a burden on and benefit to the Developer, its successors and assigns and any person with an interest in a Lot for 15 years from the date it is recorded. At that time, the restrictions will be Automatically extended for 5 successive periods unless a majority of the Current homeowners of lots sign and record an instrument changing them except Section 11 thereof which shall not be amended. Section 11 is about a flood plan area that can't have basements by a river. The by-laws can be ammended by a 2/3 vote. Please note the following statement from this section: "unless a majority of the Current homeowners of lots sign and record an instrument changing them" The CCR is in effect for 15 years with automatic renewal periods "as currently written". However a "majority" of the current lot owners can vote to change anything they want. If your CCRs are okay and you just have a problem with the rules then your best bet would be to focus on your by-laws docs. Good luck! Tracy

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