Declarations of Restrictions

Started by MaryM2 • 18 replies • 2208 views

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MaryM2 (Delaware)
Posts: 11

Posted:

Thank you for this website. It is so informative for a new HOA Board member in a brand new development. Please bear with me regarding the following questions. I'm learning...I'm very confused as to the differences of By-Laws and Declarations of Restrictions. I've read both documents that i've received and feed back from this site, yet I'm having a hard time understanding it. I've been told that is extremely hard to amend the "restrictions", but not as difficult to ammend the BY-Laws. My problem comes from the restrictions.....As a homeowner we received the restrictions upon buying our home. There were 11 restrictions at that time. As the development grew and became finalized, there was 5 more restrictions added to the original set. That was almost 1 1/2 years after moving in. This is a small development only 57 homes. The following questions pertain to the restrictions:

1. Do the original homeowners who ONLY received the original restrictions have to abide to the 5 additional ones received after they moved in. (We've been asked this by saying that we bought this house with the orginal restrictions we wouldn't of purchased here, if we knew this new rule now)

2. The original "declarant of restrictions" state "At any time after the Declarant (developer in this case) has sold 100 % of the lots, these restrictive covenants may be amended only by the affirmative vote of 51% of the owners of all lots anf for which there shall be one vote eligible to be cast for each lot". Now in my opinion it seems quite easy to amend any restriction right? Just a vote

3. Now the clincher....The "declaration of restrictions" is so vague...for example: No fence shall be erected or permitted on any lot, except with advance written permission of the delcarant of it's successor in interest". Thats it. No guidelines, no material specifications. How do we "add" specifications in the Restrictions? Do we have to have 51% majority votes to do this? Or can the BOD amend these without the members votes?

4.. another huge concern is "No above ground pools". We've been approached that this will be voted on at the general meeting to amend the original restriction. If we receive 51% is it a done deal, and we can't do a thing about it. We live in a affluent neighborhood where re-sale value is important.

I hope that I'm missing something and it's much much harder to amend the Declaration of restrictions" than just a 51% vote?

This is what we are facing 16 "Declaration of Resrictions" one more vague than the other. Each one is one line. No specifications at all.

Help!!!

Thank You
MM

CharlesW1 (Georgia)
Posts: 826

Posted:

Those are some very good questions. I’ll await the responses you get from this post.
Chuck W.

Charles E. Wafer Jr.

BradP (Kansas)
Posts: 2,640

Posted:

Mary:

I will see if I can help you and I am sure if I miss something or mistate it someone will correct me.

1. Yes, all original homeowners have to abide by the additional restrictions given that they were properly recorded with the proper entity. I am not sure how your development was set up, but our developer had 6 votes per vacant lot so until we had almost all our homes sold the developer held a majority and could pretty much what they wanted.

2. It seems easy to change restrictions, however, I have found and I am sure a lot others have found the same thing that it is very hard to get that done simply because homeowner's don't participate like you would hope. But yes, in theory all you need is 51% to approve to change it if that is what your bylaws state.

3. The BOD can not amend restrictions on its own, in that case you would need to again get 51% of the people to approve it. It is a good idea to have a more specific restriction because you want consistency.

4. Again if that is what your bylaws and restrictions say you only need 51% of the homeowners to approve it. Again I will caution you that it seems easier that it is. We have 165 homes in our subdivision, however we only get representation from maybe 25-30 of them at any meeting. You need 29 lots to vote yes. Again you could also change the procedure if you wanted as well.

I hope I am right on all this, good luck.

RogerB (Colorado)
Posts: 5,067

Posted:

Mary, let's start with your most important controlling document - the Declaration of Covenants, Conditions, and Restrictions (the Declaration is often referred to as CC&Rs or Covenants). To amend (add, delete, or change in any way) your Declaration requires 51% of all lots or 29 lot owners (one vote per lot) voting in favor. Due to apathy you will seldom get 29 lot owners at a meeting much less get them to vote to approve. Also, I recommend this vote be in writting and not include proxies. Your 51% requirement does make it a lot easier than a 67% to 90% requirement to amend the Declaration.

Early on the Developer owns most of the lots and the Declaration usually provides their class of membership a higher number of votes per lot. Therefore they can easily amend the Declaration to add restrictions. All owners are legally bound by the amendments to the Declaration as well as the original Declaration. This change could be adding restrictions.

The Declaration is often vague on items related to architectural requirements. But it should provide for allowing the association (or the Board) to make Rules and Regulations. Thus you can establish R&R to further define and limit anything but this should not violate any other HOA controlling document, local, state, and federal laws.

With regards to pools, this can not be changed by a vote at a meeting. If it is in the Declaration then the Declaration would have to be amended and the amendment filed with the County Clerk's office.

MaryM2 (Delaware)
Posts: 11

Posted:

Roger,
Thank you for your consise explanations of my problems. To follow up with you:

1. Your saying, as I have heard from other HOA, that is difficult to have many members come to the general meeting. With this being our FIRST ever HOA Meeting, I'm pretty sure there will be a good turn out, but in the event there is not, does the 51% of votes APPLY to those in attendance. For example: if someone wants to vote on something, and only 20 voters show up, do we only need 11 "yes" to pass it?

2. "The Declaration is often vague on items related to architectural requirements. But it should provide for allowing the association (or the Board) to make Rules and Regulations. Thus you can establish R&R to further define and limit anything but this should not violate any other HOA controlling document, local, state, and federal laws. " WHERE WOULD I FIND THIS IN MY DECLARATIONS?

3. The pool declaration of restriction cannot be changed by a vote at a meeting? What I think you are saying is....if passed by the 51% then as far as the development is is a go....BUT...it has to be amended and the admendment filled with the county clerks office? Could they reject it? IF not, then the only thing this does is take more time, but it will be amended. AND....any change in the Declarations of Restrictions has to go through the County Clerk's office?

4. and finally, continuing onto the pool issue, isn't there a way the BOARD can "counter offer" meaning if it passes, we can say, "ok you can have your above ground pool, BUT...you must adhere to having a deck around the permimeter of it, and a fence of x material around the yard"...Or do we need to have that voted on as well.

JulieS (Georgia)
Posts: 412

Posted:

Our board of directors created a document called 'Design Standards' in which the specifics to types of fencing, etc., can be found. This is something you may want to do when the HOA is turned over. I would think the developer would have this in place, maybe it was not give to the homeowners?

MaryM2 (Delaware)
Posts: 11

Posted:

Roger
one last thing....is there a website or somewhere i can go to find out what could/would decrease the resale value of your home...for example: above ground pools, fences of certain materials, etc...That way, when we have the meeting, I will have documentation regarding this as opposed to just hearsay, and opinions. To paint the picture better, as I said previously we have 57 homes here, 41 are on the outside perimeter, and 16 are in a center circle. I'm looking out right now for the inner circle since we live in a totally flat community and sitting outside on your deck/patio the inner circle can see the adjacent neighbors quite clearly. IF 8 of the 16 inner circle homes get above ground pools all of different makes/models, and different types of fences around it, it will look like a hodge podge development, where it will be hard pressed to re-sell for the value we wish to maintain.

JulieS (Georgia)
Posts: 412

Posted:

Amending the declaration will require 51% of the total association vote or total eligible vote (those in good standing). I would check the precise wording in the declarations. It does not mean 51% of the people at the meeting.

The pool restrictions for above ground pools is something you could put in the design standards I mentioned previously.

MaryM2 (Delaware)
Posts: 11

Posted:

Julie,
thank you. The HOA has been turned over already to us, and no such documentation was given or created. Can the Board do this WITHOUT a vote from the members? Create the Design Standards" Can we enforce them?

JulieS (Georgia)
Posts: 412

Posted:

We created them as a board and mailed them to the homeowners as official notification. We did not have them approved via a vote from the HOA. And yes, we do enforce them. The fencing allowed is very specific so when someone sumbits an ACC request, if it doesn't meet the requirements of the design standards it is denied. One of the articles in the design standards limits the number and size of 'yard art'. Right now, we have a few people that look as if they are in the business of selling angel statues & gnomes and will receive a letter to this effect. These are enforced the same as the covenants as it is an extension of the document.

MaryM2 (Delaware)
Posts: 11

Posted:

Julie, thank you very much you've been so helpful!!! I am having a little trouble understanding legally, how we can create the "design standards" without having input from the community. HOwever, that in it'self could be a no win situation with nobody agreeing on anything. So if we create this, and send it out to the community, what if a member comes to us, or writes a letter to the development saying that they don't have to ADHERE to these standards as they weren't in the original Declarant of restrictions? If we leave it as is, then we have absolutely no control at all over the development. How did you accomplish this without backlash?

JulieS (Georgia)
Posts: 412

Posted:

We did this the first year I was on our board so I do not know how they went about 'making it legal' other than mailing to the homeowners. The task was daunting and some board members made a bigger deal over items than needed. It took a lot of meetings and long hours for at least a month to get it completed.

Also, at the time, we had a terrible management company so honestly, I do not know how it was 'made legal' other than mailing to homeowners. When it went out, not a peep out of anyone. If there is a violation, we follow the procedure in our documents of a notice, 2nd notice with intent to fine if not resolved in 10 days, and a third notice stating the fines have started.

MistiH (Texas)
Posts: 52

Posted:

It's an odd thing to have above ground pools in an affluent neighborhood. Out of curiosity, why aren't they going in-ground?

Loving Life in Texas!
Misti

MaryM2 (Delaware)
Posts: 11

Posted:

Misti
I have no idea. I've wondered that myself, and to make matters worse, is that here, if the ladder is the foldable type, or removable type you DON"T need to have it fenced around. So it's for everyone to see.

RogerB (Colorado)
Posts: 5,067

Posted:

Mary, to pass most motions at a meeting only requires approval of a majority of those voting. But the vote must comply with the controlling documents. For example a vote with 11 or 21 home owners approving above ground pools means nothing because it is counter to the Declaration which would control over the motion.

Your Declaration may authorized creation of Rules and Regulations under powers and authority of the Board of Directors. Even when the Board has the authority to create R&Rs it is prudent to get the homeowners support.

An amendment to the Declaration becomes official when it is filed in the real property records at the County Clerk's office. This is only an administrative function for the County; they can not reject it when properly submitted.

Once the amendment passes, the Board (or sometimes the architectural committee) can create Rules further resticting what may be approved by the ACC, e.g., deck, fence, etc.

NikkiT (Texas)
Posts: 30

Posted:

Hi,
I have just muddled through the area of CC&R vs Bylaws with Roger.

The easy way to understand them is: (1) the CC&R are like the zoning code in a city. They run with the land, govern the use of the land and can only be changed(added to or deleted from) by a percentage of PROPERTY OWNERS. NOTICE I DID NOT SAY ASSOCIATION MEMBERS NOR BOARD MEMBERS! ALL PURCHASERS OF PROPERTY ARE REQUIRED TO OBEY THE CC&R's - - just like in a city.

A property owner may not always be a Member of the Association, due to suspension/termination of Membership by the Board or voluntary termination of Membership. Membership or not in an association does not releive the property owner from following All THE LEGALY MADE CC&R's. You mentioned that the CC&R was amended about a year and half after the first document was filed. Were these admendments voted in by the PROPERTY OWNERS? Or did the Board take it upon themselves to change this document? If so, the additional amendments probably are not legally in place. There should be a record of the mail-out to be voted on to the property owners (not just those Association Members current in their dues), the returned ballots, etc.

Example, in the HOA I belong to, the Board changed the CC&R document in several points, one of which forbade water wells being put on individual lots. (each lot is usually 60' x 90') The reason for this rule was that we "DO NOT HAVE THE WATER OR MINERAL RIGHTS TO THE LAND." Oh well, the President of the Board wanted one on her property and after the "new CC&R's" were filed, she and a couple more had wells put it. That will be a can of worms to unravel! Being 'filed' as it is, THE NEW CC&R looks very legal; they didn't just amend, they changed with a totally new document. However, not only did the PROPERTY OWNERS not vote it is, THE ASSOCIATION MEMBERSHIP did not vote it in - - just the Directors. The notice of any change was not sent to the Property owners, just the association members current in their dues! The Directors still do not understand why their actions have made people so disgusted.

Now (2)the Bylaw document is an ORGANIZATIONAL DOCUMENT. It governs the actions/behavior of the Association (memberships, financial obligations, Board of Directors, Committees, meetings, etc.) and as such can be changed by the required vote of the Membership.

Think of it this way:
THE CC&R's have to be obeyed by BOTH GROUPS OF PEOPLE -Property owners AND Association Members, while the BYLAWS have to be obeyed by the Association Membership.

In answer to your problem of above ground pools. This is something for your Archetural Committee - - The committee that takes care of the apperance of your community? Pools are not the only thing that make a yard look bad. Perhaps they could made a list of requirements for the Association's neighborhood appearance. Something like this would be put to the Association Membership to approve.

As long as the Association's Rules governing the Association does not delete the rules in the CC&R (like in my HOA) you should be okay.
In my case, no one out here is interested in keeping the Board "legal" - at least not until it hits their wallet. Taking the Board to court is not an easy, nor inexpensive matter.

Good luck, let your committees work for you. Nikki T.

MaryM2 (Delaware)
Posts: 11

Posted:

roger and nicki, thank you again for your help. Ok, now i've read and re-read all Delcarations of Coventants, and our by laws and I found this paragraph: POWERS AND DUTIES OF THE BOARD OF DIRECTORS

THE BOD SHALL HAVE THE POWER TO:
a. exercise for the corporation all powers, duties and authority vested on or delegated to this corporation not reserved to the membership by other provisions of these by-laws, the articles of incorporation, or the declaration; and to adopt and publish rules and regulations incident to the exercise of such powers, duties and authority......."

Is this paragrapgh the one i've been looking for allowing the BOD to establish a CC & R or as Julie called it "Design Standard" conforming to the declarations WITHOUT the approval(s) from the membership? Meaning the BOD gets together and creates "guidelines" for the covenants? So in our one coventant "no fence shall be erected or permitted on any lot except with advance written permission of the declarant or its successor in interest"...We can NOW add type of material, height, privacy/no privacy etc?....And we can do this "Design Standard" without having a majority rule on each item?

Please let me know as this could be extremely beneficial to our upcoming meeting and extremely extremely vague Declarations of Covenants".

WilliamT (Arizona)
Posts: 489

Posted:

Someone will correct me if I am mistaken, but here is how I understand the CC&R's:

The CC&R's (first written by the developer)set out the initial basic guidelines for the community, and from time to time need to be amended to keep up with changing times in the community, and changing laws.

Amemdments to the CC&R's must be voted on by the Members of the Association. The Board writes the amendments, gets them checked by an attorney, and then does an election ballot. Typically these amemdments will be on the same ballot as the annual director election.

The Rules & Regulations are meant to clarify (if needed)certain covenents and to fill in the cracks for items not covered by the covenents. These Rules must be reasonable and practical for your Community. They are developed and approved by the Board.

One example of clarification is where the CC&R's say a business shall not be operated in a home. The Rule can clarify this by saying "A business shall not be operated out of a home if it creates extra automobile or foot traffic in the community. Any home operated business must be licensed by the City and/or other governing jurisdictions." The CC&R should next be amended to include the new language.

The Architectural Control Criteria is part of the Rules & Regulations. They are developed by an Architectural committee appointed by the board and the Board approves the ACC. The criteria should reflect the theme and desires of the community as a whole.

The Architectural committee is responsible for receiving all requests for architectural changes and additions for approval, and for enforcing the ACC.

In Arizona the Rules must be recorded with the county recorder in order to become effective.

RogerB (Colorado)
Posts: 5,067

Posted:

Yes Mary, that is the reference in the Declaration which gives the BOD the authority to adopt and publish Rulles and Regulations. For clarification, the BOD does not establish a CC&R (if you are referring to amending the Declaration). The BOD can establish Rules and Regulations (sometimes referred to as Policies and Procedures, guidelines, etc.). So the BOD can establish restrictions on type material, height, etc. as Design Standards for the Architectural Committee to follow when approving requests. I would recommend getting support of the members via a vote of the members at the next members meeting for any Rules and Regs established by the BOD.

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