AnnaD2
(Florida)
Posts:386
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| 08/10/2008 7:02 AM |
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Five years ago the Board of Directors took the rules which were made back in 1981 and made some changes. One of the rules that were in the 1981 documents stated that there would be no over-night parking of motorcycles on the property. That particular rule was not altered nor changed in the updated 2003 rules.
However---in 1999 some of the rules were amended. This one, in particular, was changed to read that there were to be NO motorcycles on the property--period. No mention of over-night or any other time frame.
So my question is this: which rule stands? The 1999 rule amendment was ignored, or no one at the time had knowledge of it. We now have (for the first time in our existance) someone with a motorcycle. People are complaining and several of them know about the 1999 amendments. |
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MaryA1
(Arizona)
Posts:2498
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| 08/10/2008 7:32 AM |
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Posted By AnnaD2 on 08/10/2008 7:02 AM
Five years ago the Board of Directors took the rules which were made back in 1981 and made some changes. One of the rules that were in the 1981 documents stated that there would be no over-night parking of motorcycles on the property. That particular rule was not altered nor changed in the updated 2003 rules.
However---in 1999 some of the rules were amended. This one, in particular, was changed to read that there were to be NO motorcycles on the property--period. No mention of over-night or any other time frame.
So my question is this: which rule stands? The 1999 rule amendment was ignored, or no one at the time had knowledge of it. We now have (for the first time in our existance) someone with a motorcycle. People are complaining and several of them know about the 1999 amendments.
Anna,
Are you talking about board-adopted rules or the CCR restrictions? There IS a big difference. The CCRs can only be amended by a vote of a certain % of the members and generally are not valid unless recorded with the Co. Recorder. However, the board-adopted rules usually require no vote of the members and can be changed at whim by the board. But, in either instance it would be the rule that was last amended or adopted. The member should always be notified of any changes, whether by a CCR amendment (CCR restriction) or by a board motion or resolution (board-adopted rule).
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GloriaL
(Georgia)
Posts:110
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| 08/10/2008 8:15 AM |
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Point of interest on my part as a BOD Member:
1. does anyone know if there are any GEORGIA state regulations regarding creation of Rules& Reg's?
2. or HO notification requirements of those newly adopted R&R's, in Georgia?
3. is the adoption and notification procedure in GEORGIA just left up to the BOD and what they deem reasonable/legal?
Just curious...glad that I'm not a cat...you know what they all say about curiousity and cats...
Thanks,
Gloria |
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RW1
Posts:0
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| 08/10/2008 9:53 AM |
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First establish which documents contain this language and exactly what they say.
Then establish when they were ammended and the procedure(s) used.
Is this an HOA of single-family homes built on lots which are not common peoperty?
Are your streets public, private (HOA), private but patrolled by law enforcement?
These items matter because they cannot tell you that you cannot own a motorcycle.
They cannot tell you what you can store in your garage.
The road issue now is important as to who has authority over their use. Thay may be able to deny you use of it on the HOA streets.
But...they cannot prevent you from access to your property.
I have known a community where they were so ---blank--- ALL they could do was prevent a member from RIDING the cycle on the HOA streets to his house. They made him walk it from his driveway to the public street. He said fine, and proceeded to run the engine revving it as he walked down the street.
What did the HOA gain?? It's now worse because it takes longer to push the bike than to just ride it out.
Harassing, power drunk BODs.
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AnnaD2
(Florida)
Posts:386
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| 08/10/2008 10:05 AM |
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We are a condo association. We have just two buildings with a single driveway down the middle that dead ends at our dumpster. It is all on private property; no city street.
The reading is (in part) as follows: "A RESOLUTION AMENDING THE DECLARATION OF (NAME OF CONDO), PROVIDING AN AMENDMENT TO ARTICLE THIRTEEN, SECTION FIVE........." "AT A MEETING CALLED BY 100% OF THE OWNERS OF THE UNITS AT__________________ AND WITH ALL ONE HUNDRED PERCENT OF THE OWNERS OF UNITS BEING PRESENT, THE FOLLOWING AMANDMENTS TO THE DECLARATION OF CONDOMINIUM WERE ADOPTED UNANIMOUSLY". "RESOLVED: WHICH SHALL PROVIDE AS FOLLOWS:________________MOTORCYCLES ARE SPECIFICALLY PROHIBITED FROM ANY PORTION OF THE CONDOMINIUM PROPERTY." "IN WITNESS WHEREOF, THE UNDERSIGNED ACKNOWLEDGE THAT THE ABOVE RESOLUTIONS WERE ADOPTED UNANIMOUSLY BY 100% OF THE OWNERS OF UNIT OF THE CONDOMINIUM THIS DAY OF OCTOBER 26, 1999.
In 2003 the Board took the rules that were previous to this amendment and did not change the rule (from 1981 which said no overnight parking) and did not file it with the County or anywhere else, for that matter. They simply changed the date at the bottom. |
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MaryA1
(Arizona)
Posts:2498
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| 08/10/2008 10:07 AM |
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Posted By RW1 on 08/10/2008 9:53 AM
First establish which documents contain this language and exactly what they say.
Then establish when they were ammended and the procedure(s) used.
Is this an HOA of single-family homes built on lots which are not common peoperty?
Are your streets public, private (HOA), private but patrolled by law enforcement?
These items matter because they cannot tell you that you cannot own a motorcycle.
They cannot tell you what you can store in your garage.
The road issue now is important as to who has authority over their use. Thay may be able to deny you use of it on the HOA streets.
But...they cannot prevent you from access to your property.
I have known a community where they were so ---blank--- ALL they could do was prevent a member from RIDING the cycle on the HOA streets to his house. They made him walk it from his driveway to the public street. He said fine, and proceeded to run the engine revving it as he walked down the street.
What did the HOA gain?? It's now worse because it takes longer to push the bike than to just ride it out.
Harassing, power drunk BODs.
RW,
First of all Anna did not say the rule is that no one can own a motorcycle; only that motorcycles cannot be driven in the s/d. Secondly, even with public street, in many jurisdictions HOAs can -- and do -- place certain restrictions on the roadways. Here in AZ assn's can effectively regulate parking on public streets. The courts have ruled that the members have agreed to these restriction when moving into the assn. I think a better rule would be that the motorcycle must have a muffler; because I would venture to say it's the noise that is the real problem. In fact, that is the law in many jurisdictions.
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DonnaS
(Tennessee)
Posts:2948
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| 08/10/2008 10:11 AM |
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Anna,
The amendment which you posted is the governing factor. It was passed by 100% of the membership. The Rules are under the amendment in authority, therefore the rule is not valid or enforceable. Rules do not get filed with the County but the Amendment change does. I read this that the Amendment was filed? Correct? |
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DonnaS
(Tennessee)
Posts:2948
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| 08/10/2008 10:17 AM |
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RW.
First of all, I am not saying that I agree or disagree with this BUT!!!
I know of an association in Florida that states "NO MOTORCYCLES MAY BE BROUGHT ONTO ANY ASSOCIATION PROPERTY AND THAT INCLUDES THE STREETS" This association is gated and the streets are private, therefore the attorney advised that they indeed can restrict the street usage. |
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JohnK3
(Pennsylvania)
Posts:565
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| 08/10/2008 10:20 AM |
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100% of Owners both showed up and voted? If so:
1. That is amazing.
2. Obviously, the vox populi has spoken. As of 1999, regardless of whether the issue was addressed in 2003. IMO.
Donna,
Could you explain why you don't think it's enforceable? What am I missing? |
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SusanW1
(Michigan)
Posts:2316
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| 08/10/2008 10:46 AM |
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Kind of confusing - but the previous CCR or bylaw should have been recinded before the new one voted in (adopted)
OR
the old one need to be amended to reflect the new verbiage.
There can't be two rules which say conflicting things.
Unless this is in a private subdivision, it's a moot point anyway.
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JohnK3
(Pennsylvania)
Posts:565
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| 08/10/2008 10:52 AM |
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Susan,
PROVIDING AN AMENDMENT TO ARTICLE THIRTEEN, SECTION FIVE........."
I assumed this referred to what was being amended, and adding an addition to, but I 'spose it would help knowing what 13.5 states to assist sorting things out.
But the language that was adopted by 100% seems pretty clear, no matter where it was tucked in, yes? |
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DonnaS
(Tennessee)
Posts:2948
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| 08/10/2008 10:57 AM |
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John,
The rule and the amendment to the Covenant are different. Therefore the covenant overrides the rule.
Anna said, "The rule said ---" One of the rules that were in the 1981 documents stated that there would be no over-night parking of motorcycles on the property. That particular rule was not altered nor changed in the updated 2003 rules.
In 2003, this passed the membership which tells me that this is an AMENDMENT, not justa rule.----"The reading is (in part) as follows: "A RESOLUTION AMENDING THE DECLARATION OF (NAME OF CONDO), PROVIDING AN AMENDMENT TO ARTICLE THIRTEEN, SECTION FIVE........." "AT A MEETING CALLED BY 100% OF THE OWNERS OF THE UNITS AT__________________ AND WITH ALL ONE HUNDRED PERCENT OF THE OWNERS OF UNITS BEING PRESENT, THE FOLLOWING AMANDMENTS TO THE DECLARATION OF CONDOMINIUM WERE ADOPTED UNANIMOUSLY". "RESOLVED: WHICH SHALL PROVIDE AS FOLLOWS:________________MOTORCYCLES ARE SPECIFICALLY PROHIBITED FROM ANY PORTION OF THE CONDOMINIUM PROPERTY." "IN WITNESS WHEREOF, THE UNDERSIGNED ACKNOWLEDGE THAT THE ABOVE RESOLUTIONS WERE ADOPTED UNANIMOUSLY BY 100% OF THE OWNERS OF UNIT OF THE CONDOMINIUM THIS DAY OF OCTOBER 26, 1999.
NOW ANNA< I noticed that you said the rules were updated in 2003 and the date on the bottom of the amendment is 1999. So did you mean 1999 or 2003?
But it doesnt matter what rules they enacted or when. Unless there was an amendment to the above 1999, this is the governing document which does NOT allow motorcycles at all.
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SusanW1
(Michigan)
Posts:2316
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| 08/10/2008 11:04 AM |
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I thought that Anna was concerned that the 1981 "rule" was still "out" there and residents were confused - plus there is an additional 1999 rule (the amendment).
But I think the '81 was amended to the '99 wording.
In any case, since we don't have the entire document, Anna should make sure that the '99 amendment is the only one in the document. And that is the one in effect.
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JohnK3
(Pennsylvania)
Posts:565
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| 08/10/2008 11:04 AM |
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Donna,
Nice catch on the 1999/2003 issue! I'm even more confused now. |
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DonnaS
(Tennessee)
Posts:2948
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| 08/10/2008 11:20 AM |
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John,
Unless we have all of the docs, it is confusing and it is a tough call to make but basically, unless there has been an amendment to the 1999 covenant, that (the 1999) will be what they must enforce.
I posted this before and I am sure you know this but for others who do not, there is a heirarchy of documents.
#1, All Federal Laws, HUD, ADA, and any and all Fed. Laws
#2, Stae Laws And Statutes
#3 County, City or Municipality Codes and Laws.
#4 The Protective and Restrictive Covenants,
#5 Articles of Inc filed under the State requirements
#6 ByLaws of the Association
#7 Rules and Regs, adopted by the Board (usually)
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MaryA1
(Arizona)
Posts:2498
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| 08/10/2008 11:24 AM |
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Posted By AnnaD2 on 08/10/2008 10:05 AM
We are a condo association. We have just two buildings with a single driveway down the middle that dead ends at our dumpster. It is all on private property; no city street.
The reading is (in part) as follows: "A RESOLUTION AMENDING THE DECLARATION OF (NAME OF CONDO), PROVIDING AN AMENDMENT TO ARTICLE THIRTEEN, SECTION FIVE........." "AT A MEETING CALLED BY 100% OF THE OWNERS OF THE UNITS AT__________________ AND WITH ALL ONE HUNDRED PERCENT OF THE OWNERS OF UNITS BEING PRESENT, THE FOLLOWING AMANDMENTS TO THE DECLARATION OF CONDOMINIUM WERE ADOPTED UNANIMOUSLY". "RESOLVED: WHICH SHALL PROVIDE AS FOLLOWS:________________MOTORCYCLES ARE SPECIFICALLY PROHIBITED FROM ANY PORTION OF THE CONDOMINIUM PROPERTY." "IN WITNESS WHEREOF, THE UNDERSIGNED ACKNOWLEDGE THAT THE ABOVE RESOLUTIONS WERE ADOPTED UNANIMOUSLY BY 100% OF THE OWNERS OF UNIT OF THE CONDOMINIUM THIS DAY OF OCTOBER 26, 1999.
In 2003 the Board took the rules that were previous to this amendment and did not change the rule (from 1981 which said no overnight parking) and did not file it with the County or anywhere else, for that matter. They simply changed the date at the bottom.
Anna,
Do you know for a fact the resolution to amend the CCRs that was passed in 1999 was indeed filed with the Co. Recorder? If not, then the old rule is still in effect. If the rule change is 2003 was not voted on, and not recorded, it is null and void. I find it interesting that no one questioned the new rule in 2003 since it was not voted on by the members! |
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DonnaS
(Tennessee)
Posts:2948
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| 08/10/2008 11:36 AM |
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Mary,
AH HAAA,
I just reread the small print at the bottom where it says it (CONFUSED HERE BECAUSE OF THE USE OF RULE INSTEAD OF COVENANT)was not filed in the County but they just changed the date. Then Anna said that 2003 was a change to the "rules" which still would not affect the covenant.
Anna--in 2003 they changed rules? That has no effect on the covenant unless any changes were made to the cov. Just one single word change requires a vote by the membership to make it valid. So what happened in 2003? Rule changes or covenants change per a membership vote? |
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AnnaD2
(Florida)
Posts:386
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| 08/10/2008 11:54 AM |
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Goodness, now I'M confused!!! Of course it doesn't take much for that to happen.
1. Rules in 1981 state no overnight parking of motorcycles.
2. Amendment of Declartion stating no motorcycles, passed 100% in 1999.
3. Board changed wording of some rules in 2003....no vote, used "whiteout" at bottom--changed 1981 to (handwritten) 2003.
Does this help? Probably not. |
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DonnaS
(Tennessee)
Posts:2948
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| 08/10/2008 12:06 PM |
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Thanks Anna,
Yup, it's clear now. The amendment from 1999 is the governing document. "No Motorcycles" is what it says.
1981 rule has been changed to the 2003 with some word changes. What does the 2003 Rule read???? This is the most important thing for us to see. But no matter what, the wording to the 1999 amendment still takes precedence and is the law. |
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DonnaS
(Tennessee)
Posts:2948
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| 08/10/2008 12:33 PM |
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Anna,
I had a "DUH" moment here. The answer is so simple.. The last document that was filed in the Cerk of Circuit Court's office is the governing Document. All other amendments and rules must follow the wording of that registered amendment to the CC&Rs otherwise, they are invalid.
If you want, I can check it out for you OR you just go to your Countys web site for the Clerk of Circuit Court.
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AnnaD2
(Florida)
Posts:386
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| 08/10/2008 12:44 PM |
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| Thank you Donna! I've been on our County Clerk's office website many, many times and cannot figure out WHERE to find our filed documents. I've searched all over, and even tried to find documents using our condo association registered name, but am not able to locate them. |
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DonnaS
(Tennessee)
Posts:2948
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| 08/10/2008 12:49 PM |
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Anna,
If you want to, you can send your COUNTY and your ASSOCIATION name to my Hot Mail account which I use for this site.
buschmand@hotmail.com I'll give it a good shot so make sure you keep looking back at this thread. Don't forget, I am the lover of documents work. |
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cpoulin
(Colorado)
Posts:35
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| 08/11/2008 9:06 PM |
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DonnaS
The only thing that may contradict your information would be if the amendment was not recorded with the county. Also, if the BOD created rules on a form similar to the declaration(CCR'S), then they are only rules and do not have precedence over the declaration(CCR's). Best to find out what is recorded in the declaration(CCR's)with the county, since it has precedence. Checking with the county will verify if any amendments are recorded. It wouldn't need to have 100% of the owners approval for an amendment - that percent would be represented in the declaration(CCR's). If not recorded with the county, then it is a rule or an unenforceable amendment.
For the poster, please understand the term "Declaration of Covenants Conditions and Restrictions" is what the county will understand when requesting information about the official documents and to verify if any amendments are recorded.
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Posted By DonnaS on 08/10/2008 10:57 AM
John,
The rule and the amendment to the Covenant are different. Therefore the covenant overrides the rule.
Anna said, "The rule said ---" One of the rules that were in the 1981 documents stated that there would be no over-night parking of motorcycles on the property. That particular rule was not altered nor changed in the updated 2003 rules.
In 2003, this passed the membership which tells me that this is an AMENDMENT, not justa rule.----"The reading is (in part) as follows: "A RESOLUTION AMENDING THE DECLARATION OF (NAME OF CONDO), PROVIDING AN AMENDMENT TO ARTICLE THIRTEEN, SECTION FIVE........." "AT A MEETING CALLED BY 100% OF THE OWNERS OF THE UNITS AT__________________ AND WITH ALL ONE HUNDRED PERCENT OF THE OWNERS OF UNITS BEING PRESENT, THE FOLLOWING AMANDMENTS TO THE DECLARATION OF CONDOMINIUM WERE ADOPTED UNANIMOUSLY". "RESOLVED: WHICH SHALL PROVIDE AS FOLLOWS:________________MOTORCYCLES ARE SPECIFICALLY PROHIBITED FROM ANY PORTION OF THE CONDOMINIUM PROPERTY." "IN WITNESS WHEREOF, THE UNDERSIGNED ACKNOWLEDGE THAT THE ABOVE RESOLUTIONS WERE ADOPTED UNANIMOUSLY BY 100% OF THE OWNERS OF UNIT OF THE CONDOMINIUM THIS DAY OF OCTOBER 26, 1999.
NOW ANNA< I noticed that you said the rules were updated in 2003 and the date on the bottom of the amendment is 1999. So did you mean 1999 or 2003?
But it doesnt matter what rules they enacted or when. Unless there was an amendment to the above 1999, this is the governing document which does NOT allow motorcycles at all.
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cpoulin
(Colorado)
Posts:35
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| 08/11/2008 9:17 PM |
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AnnaD2
Most county documents are not on their websites. If you want to find out you will have to go to the county assesor's office to look up the information.
If you are not sure what to look up, have an employee of the assesor's office help you. They are usually very helpful and it shouldn't cost you anything. Expect a fee for anything you need a copy of. |
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DonnaS
(Tennessee)
Posts:2948
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| 08/12/2008 7:29 AM |
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cpoulin
In Florida, the covenants and any amendments thereafter are filed in the Clerk of the Circuit Court for each County.
I have been trying to assist Anna on her Countys website but we both are hitting brick walls, probably because of the age of the amendment. It is most likely on Microfilm now and therefore only viewable by an in person request. |
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AnnaD2
(Florida)
Posts:386
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| 08/12/2008 8:29 AM |
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| Thank you Donna and everyone else for all of your assistance. Donna especially, I know that website can be very frustrating. |
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KirkW1
(Texas)
Posts:1190
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| 08/12/2008 7:42 PM |
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I would think that you should consider doing something about the claim of 100% approval. While it is possible, it just seems highly unlikely. Further, it would only take a single owner on record for that year to invalidate the claim.
Aside from this, why the ban? While I don't ride, many people are going to motorcycles with gas prices so high. |
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AnnaD2
(Florida)
Posts:386
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| 08/13/2008 4:57 AM |
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Kirk, I can explain the 100% approval. At that time it was under control of the developer. The BOARD was the developer. Three people. The president, the vice president and the secretary/treasurer.
The ban on motorcycles has to do with the noise violation. Remember, this is just two buildings with a driveway down the middle. This guy did something to his bike to really UP the noise. The sound just booms off the buildings and rattles people. We have people here who are sick; some are dying. We also have young people with little children and babies trying to take naps.
After 27 years of NO ONE owning a motorcycle this is the first person to bring one on the property. People have enjoyed a relatively "noise-free" environment and this is very disturbing. I believe this is exactly what the developer was trying to prevent from happening and we're trying to ensure the peace continues. |
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MaryA1
(Arizona)
Posts:2498
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| 08/13/2008 7:15 AM |
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Anna,
I think we've already agreed that the 1999 amendment applies, if it was recorded. If not, then the original rule prevails.
However, have you ever noticed that P.D. motocycles never make any noise? That's because they have mufflers. Some jurisdictions have ordinances prohibiting motorcycles w/o mufflers. Check your state or local laws regarding this. Also, don't your CCRs have a "noise" restriction? If so, use it!! |
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KirkW1
(Texas)
Posts:1190
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| 08/13/2008 11:43 AM |
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Two things: what you posted is that 100% of the OWNERS voted yes to the change. It is possible especially if there was a high number owned by the developer.
Second thing is what will you do when the owner of the motorcycle trades it in for a car and unbolts the exhaust pipe from the header? (You only "think" you have heard noise at this time.) Will you then ban cars?
It follows along just as well since you have also banned the little Vespa scooters that are nearly as quiet as a bike. (Unless you defined motorcycles it would sweep these in as well since the state sees them as motorcycles.) I have also been around many a Honda Goldwing that is quieter then a car.
I very much understand about the noise and don't blame you. If my neighbor's dog wakes the kids from their nap I hear about it. But I also think there has to be a better way of dealing with it then banning motorcycles altogether. Perhaps you can put some noise caps in place. Meters for measuring cost very little. Put the fine for second and third violations up high. |
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