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Subject: Bylaws
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Author Messages
ArthurR
(Idaho)

Posts:17


08/22/2006 1:48 PM  
I would like to know the difference between "bylaws" and CCRs. I have seen some posts mention a rule in their bylaws and the same or similar rule is in our CCRs. Our CCRs also mention bylaws but I have no clue where to start. The builder is getting ready to turn the HOA over to the homeowners and I would like to get involved but figure it would help to know the difference. For what it is worth, I am in Idaho.

Thanks
Art
CharlesW1
(Georgia)

Posts:826


08/22/2006 1:59 PM  
Art,

Don’t feel alone, me too
Chuck W.

Charles E. Wafer Jr.
BrianB
(California)

Posts:2820


08/22/2006 4:40 PM  
Typically, CC&R's are the rules that the Owners must follow regarding the association, property, etc..

By-laws are typically the rules that the BOARD must follow, the how-to's on running the organization itself, etc..

CC&R might say that grass needs to be cut, no pools allowed, or that walls must be under 6 foot tall.

By-laws specify how many board members the HOA should have, how they are to be elected, how many meetings they must have a year, and how to resign from the board, replace members, etc..
ArthurR
(Idaho)

Posts:17


08/22/2006 6:09 PM  
BrainB

Let see if I have this right. Our HOA is a Idaho Nonprofit Corporation. I assume that must mean our bylaws are the Idaho Nonprofit Corporation Act (Title 30) that addresses a number of issues regarding any type of lawful nonprofit corporation formed under its' provisions. It covers directors, voting, meetings, required officers, etc., etc.

Art
RogerB
(Colorado)

Posts:5067


08/22/2006 8:12 PM  
Arthur, your By-laws should include elements in the Idaho Nonprofit Corporation Act among other things. But your By-laws are a separate controlling document for only your association.
DonN
(Michigan)

Posts:357


08/23/2006 3:24 AM  
CC&Rs and Bylaws

I offer a few thoughts on a complex issue. Others may differ.

There is a broad and significant distinction. CC&Rs are governed by property law and "run with the land". There is extensive common law for CC&Rs or restrictive covenants in general. CC&Rs must be recorded with the Register of Deeds in your county or municipality. As such, they will be discovered in any title search. Strict rules of interpretation have evolved in common law. In common law, those rules for Michigan were summarized in a recent Court of Appeals decision, Ribick v Inverrary LLC, “Restrictive covenants are to be read as a whole to give effect to the ascertainable intent of the drafter, and strictly construed against grantors and the parties seeking to enforce the covenants.  All doubts are to be resolved in favor of the free use of property.  Courts should not infer restrictions that are not expressly provided for in the controlling documents."  (Case citations eliminated)

CC&Rs typically include provisions for amendment that usually require approval by a super-majority of owners. However, amendments that include a major change may require 100% approval, or may be enforceable only for new owners. A recent North Carolina Supreme Court ruling, Armstrong v Ledges, temporarily posted at http://www.aoc.state.nc.us/www/public/sc/opinions/2006/640-05-1.htm provides an extensive discussion. Common law may vary from state to state. Welcome to the quagmire of property law.

A property owners association (POA) is typically defined in the CC&Rs, which gives it authority which "runs with the land". However, the POA is typically authorized in the nonprofit corporation act as a mutual-benefit (or membership) corporation. Bylaws are typically required under nonprofit corporation law. The bylaws describe the operational aspects of the POA. One is a member of the POA under nonprofit corporation law, but is an owner under property law. Bylaws are typically subordinate to the CC&Rs. Confusing, yes, but the distinction is important. Typically, the bylaws cannot create an obligation for the member that is not described as an obligation for the owner in the CC&Rs. Much litigation here. Because nonprofit corporation acts typically evolved from business corporation acts, there is much similarity. Members have few rights in the corporate world, which unfortunately applies to members of POAs unless separate law has been enacted, such as in Florida and Virginia.

Wikipedia is a good resource for descriptions of the various terms and concepts. Start with homeowners association. The article contains links to restrictive covenants and many other terms. Also read the article on bylaws.

So you though living in a common interest development (CID) governed by a property owners association (POA) would be easy. Many of us argue that the legislation should make CIDs/POAs be as much like municipalities as possible.

Don Nordeen
Governance of Property Owners Associations
ArthurR
(Idaho)

Posts:17


08/23/2006 10:11 AM  
Thanks for all the good replies. Helpful and informative. I contacted the MC and they said the builder has the bylaws and they will see how I can get a copy.

Thanks again.
Art
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