Additions to Rules & Regulations

Another topic arose at our BOD Mtg. The discussion began on the sujectivity of our Rules & Regulations. Our R&R state "edging of lawns surrounding trees, beds and all hard surfaces which include driveway, street and sidewalk." One HO put some decorative bricks around his trees and does not edge well there. He has been cited for this violation, and as yet to remedy...we are still working on that. One BOD Member wants him to just remove the brick and just mow. Other say that mowing is not edging, then many HO's are not edging. The discussion went nowhere.
But then the topic of trampolines came up. One BOD member wants them banned as an eyesore. Two HO's have trampolines in the rear yard but towards the side property line so they ARE visible from the street. One HO has a trampoline in the rear yard but NOT visible from the street so it isn't a problem to that BOD Member.
I believe that if the BOD wants to amend the R&R's to address the edging or trampoline issues, we should give the Community opportunity for input even if they don't respond. The problem is the Community never responds (which as I see from this forum is usual). The discussion went back and forth, and finally the BOD tabled the whole matter until the next BOD Mtg next month.
Under our CCR's, "The BOD by a 2/3 vote at a meeting...may from time to time adopt and approve such additional rules and regulations concerning the use, occupancy and maintenance of, and activities conducted upon any Lot or improvements thereon as it may deem necessary or desirable to clarify or supplement the provisions of this Article and such other pertinent provisions of this Declaration so as to promote the purposes and intent hereof."
How do you handle adding/deleting/amending your R&R? This is not the CCR's, so they are not recorded with the county, and are truly at the whim and discretion of the present BOD...which I find kind of scary.
Thanks,
Gloria

Gloria,
Your BOD has the authoritiy to establish R&Rs; the guideline is they must be reasonable. If the homeowner got ARC approval for the decorative bricks around his trees then the HOA can not make him remove them. However, they can require trimming the grass immediately adjacent to the bricks. If the trampoline was approved by the ARC then changing a R&R does not give the HOA the right to require the owner to remove it. Be careful not to add restrictions via R&Regs when a precident has already been established.

Gloria,

Many assn docs have a similiar provision granting the board authority to adopt rules and regs. Most do not require a vote of the members. It's always been my opinion that it's these board-adopted rules and regs that cause most of the problems w/i the assn. If your board is willing to at least ask the members to comment b/4 adopting a new rule or reg I think it's a great idea. Even better would be to require a vote of the members. The fact that many members do not participate is a moot point. The board should still make the effort, then if there is no response they can just adopt the rule on their own. But at least they tried to get the vote of the members. IMO, it will go a long way to promote goodwill in the community.

I totally agree with involving the Members to help promote goodwill in the community, whether or not they choose to participate.
I will push for using this method when we discuss the R&R at our next meeting of the BOD.

Gloria

I agree, Susan, because in my mind, I would understand the bricking to actually be "edging." And the fact that he does not trim well enough around the edging is pretty subjective. In my opinion.

Also, I have a question regarding establishing a Rule "banning" the trampolines.

If the CC&Rs do not already address sports equipment, other than "playhouses," then how can the Board establish a Rule regulating either their existence or location?

". . . as it may deem necessary or desirable to clarify or supplement the provisions of this Article and such other pertinent provisions of this Declaration so as to promote the purposes and intent hereof."

I'm not asking this question (as some might) because I already "know" the answer and am trying to trip up or challenge the board in some way.

I'm asking because our docs have similar language and we've been unsure as to whether we can create a legal R&R covering basketball goals (and other sports equipment, such as trampolines) if they are not already addressed in our documents.

Rather than risk our credibility by putting something out there we may or may not be able to do, we just bit the bullet and proposed an amendment (regarding basketball goals only) that restricted their location and required ARC approval prior to installing permanent ones.

The amendment passed by a wide margin.

But then, we're able to use proxy voting to not only establish quorum but for votes on agenda items as well.

Some HOAs apparently aren't able to do that.

Gloria,

You need to read the article giving the board authority to create rules and regs. It will usually have certain stipulations indicating what the rules may govern. For ex: my assn CCRs read:

"By a majority vote of the board, the assn may, from time to time adopt, amend and repeal rules and regulatuons to be known as the "Rules", with respect to all aspects of the assn's rights, activities and duties under this declaration. The rules may, without limitation, govern use of the property, including prohibiting, restricting or imposing charges for the use of any portion of the property by owners, residents or others, interpret this declaration or establish procedures for operation of the assn or the admin of this declaration; provided, however that the rules shall not be inconsistent with this declaration, the articles or bylaws. A copy of the rules as they may from time to time be adopted, amended or repealed shall be maintained in the office of the assn and shall be available to each owner upon request."

The term "govern use of property" could be construed to mean the h/o's property and could be the authority to adopt all sorts of rules. In fact I believe that's where the trash can rule comes from and other rules prohibiting flower pots and benches in front yards, etc.

Also, your CCRs may contain an article giving the board authority to interpret the provisions of the declaration.

You are never going to be able to "list" ALL the possible types of sports equipment in rules or CCR's - who knows what other fun sports thing they will come up with next that grandmas are going to buy?

So, what is it that you REALLY want? If your goal is to have a clean look to the neighborhood, you are going to have to set the standard and make everything else go thru an approval hearing.

Is it that you don't want to SEE any buildings, lawn, garden or sport equipment, accessory or machinery, attached or free-standing . . .???

You need to look at what other HOAs are doing about this same issue.

Then write a general rule and require application and approval from the Board or ARC.

I believe that our CCR's restrict our Rules to clarify those specified...and I don't know where trampolines or any sport equipment fall or don't fall...or trash receptacles for that matter (they aren't addressed in the covenants either)
I certainly appreciate all this input, and I guess I am also looking for that "magic key."
help anyone?

Gloria,

You stated your CCRs read: "The BOD by a 2/3 vote at a meeting...may from time to time adopt and approve such additional rules and regulations concerning the use, occupancy and maintenance of, and activities conducted upon any Lot or improvements thereon as it may deem necessary or desirable to clarify or supplement the provisions of this Article and such other pertinent provisions of this Declaration so as to promote the purposes and intent hereof."

Note the phrase: ". . .and activities conducted upon any Lot. . ." which can be include recreational activities, i.e., jumping on a trampoline, bouncing a basketball (basketball goals rule). I think the CCRs do give the board the authority to restrict trampolines. The word "trampoline" does not have to appear in the CCR article. Although I fail to understand what is wrong with having a trampoline in one's back yard even though it can be seen from the street! Why does kids' play have to be restricted in so many assn's? Don't these board members recall being a kid? Please don't tell me this is another example of "reduced property values"!!

Mary, I still feel, (and the rest of our board feels this way, too) that the section "any activities on the Lot" cannot be taken out of context with the rest of the sentence that appears, at least to us, to only cover those activities that already are covered in the CC&Rs, but allow for the Rules to clarify or supplement them.

This is where the trepidation comes from.

Which is also why we don't really have any Rules & Regs yet, but simply offer to amend a restriction to get to the same place: clarifying, supplementing, in some places actually changing (since you CAN do that with an amendment and not a Rule or Reg) the area or item that is in question.

We are in the process of stepping into the Rules & Regs fray with garbage cans, for example. Our restrictions says that they are to be stored in such a way as to not be visible from "the front of the house."

We are trying to work on a Rule for that whereby someone can place their garbage can at the side of their house, as long as it is screened in some way, by shrubbery (Shrubbery! Ni Ni Ni!), for example.

Michele,

In reading over the article in Gloria's CCRs, I find it to be very far-reaching. As you point out, one section of the CCR article cannot be taken out of context. Not knowing exactly how yours is worded, I cannot comment. However, I know many CCRs only extend the authority to cover governing common areas. Gloria's is explicit in stating "activities conducted upon ANY lot" and further says "as it may deem necessary or desirable to clarify or SUPPLEMENT the provisions of this article and other pertinent provisions of the declaration. . ." Pay close attention to the word "supplement". IMO, this gives the BOD the authority to enact just about any type rule they wish to regulate just about any type activity on a member's lot. Frankly, this is quite a bit scary!

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From what I am understanding, and I could be totally wrong, there are now two different interpretations of the R&Rs section of our CCR.

Mary believes that "any activities on the Lot" allows for sports activities (trampolines and basketball nets, and anything the current BOD desires) to be addressed and/or banned even if not specified in the CCR's.

Michele believes that pulling that phrase out of context from the remainder of the sentence, which is lengthy, changes the intent from what is specified in the CCR's for clarification and supplementation. If those acitivites aren't specified, then going for a CCR amendment change would have to occur in order to address.

Am I understanding these two positions correctly?

I hope there will be further input on this topic from more members, because these two positions can present two totally opposite outcomes.

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Gloria,

To throw fuel on the fire,m here is how the Indiana Court of Appeals interprets covenants:

"Indiana law permits restrictive covenants but finds them disfavored and justified only to the extent they are unambiguous and enforcement is not adverse to public policy. Holliday v. Crooked Creek Villages Homeowners Assoc., Inc., 759 N.E.2d 1088, 1092 (Ind. Ct. App. 2001).

When courts are called upon to interpret restrictive covenants, they are to be strictly construed, and all doubts should be resolved in favor of the free use of property and against restrictions. Renfro, 799 N.E.2d at 547.

The covenanting parties’ intent must be determined from the specific language used and from the situation of the parties when the covenant was made. Mayer, 830 N.E.2d at 979. Specific words and phrases cannot be read exclusive of other contractual provisions. Id.

In addition, the parties’ intentions must be determined from the contract read in its entirety. Id.

We attempt to construe contractual provisions so as to harmonize the agreement, id., and so as not to render any terms ineffective or meaningless, City of Lawrenceburg v. Milestone Contractors, L.P., 809 N.E.2d 879, 883 (Ind. Ct. App. 2004), trans. denied.

http://www.in.gov/judiciary/opinions/pdf/11170605ewn.pdf

This may provide some guidance to you in determining the most appropriate way to interpret language in the covenants.

Cheers!

Gloria, in reply to your query as to whether R&Rs should be created at all, I believe they do have a place, and in some HOAs, they probably can be a bit more encompassing.

But, from our understanding of our language, which is very similar to yours, we have to be very careful in what we set up as an R&R.

For example, our CC&Rs address mailboxes only that they are to be approved for placement and appearance.

So our boad developed a Rule covering mailboxes that they are to be black in color, have an attached paper slot, be mounted on a specific type of pole, etc etc. It also specifies that they cannot be enclosed in brick or any other materials. I believe they also specify that they have to be metal, but don't have the wording in front of me.

There is also language in our CC&Rs that talks about the lot must be maintained and be free of weeds and other debris, or something along those lines.

So the board is working on an R&R that further clarifies what "maintained" must at a minimum look like, among other things. But I'm not on that committee so I don't know where they are with the language yet.

Anyway, changing CC&Rs and developing R&Rs always manages to elevate my anxiety level, since I try as much as possible to be a live-and-let-live sort of person, and am pretty literal, if the situation allows. Unfortunately, so many provisions and covenants are so vague or ambiguous, no doubt as a result of boilerplate construction, that we (the board members) sometimes have to take that "leap of faith" into interpreting, clarifying, and supplementing!

Still always makes me nervous, though.