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Subject: Bylaw Problem
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LouH1
(Michigan)

Posts:137


10/15/2020 5:26 PM  
Augustin D, are you back?

Our Association has determined that because an attorney has said our Architectural bylaws are unenforceable (and this is true due to a word in the bylaws that says "NOT" enforceable and has always been there. Bylaws are nearly 20 years old. Anyway, now that an attorney has said that, he believes we cannot enforce any of the other by laws because if we did, it would be "selective enforcement" and we could be sued for that. I don't buy this argument and think they just don't want to enforce bylaws that they want to get rid of anyway. I am beside myself trying to do the community business, knowing we were elected to enforce our bylaws and knowing the majority of the community wants us to do that. I have threatened we can be sued for doing nothing all the time too. What do you suggest and what can I do about this problem? Thanks in advance!

AugustinD


Posts:4153


10/15/2020 6:07 PM  
Posted By LouH1 on 10/15/2020 5:26 PM
Our Association has determined that because an attorney has said our Architectural bylaws are unenforceable (and this is true due to a word in the bylaws that says "NOT" enforceable and has always been there. Bylaws are nearly 20 years old. Anyway, now that an attorney has said that, he believes we cannot enforce any of the other by laws because if we did, it would be "selective enforcement"
"Selective enforcement" means the board is enforcing a bylaw/covenant/rule against one (or some) Owner(s) but not others. If a HOA takes an Owner to court, and the Owner can prove "selective enforcement" is occurring, then the judge can rule for the Owner, and against the HOA, and order that the lawsuit be dismissed.

I bet your attorney is claiming that, when the Board does not enforce these Architectural bylaws against Owner X (who is violating the requirements of the Architectural bylaw), but enforces a non-Architectural Bylaw against Owner Y (who is violating the non-Architectural Bylaw), then this counts as selective enforcement. This is not so.

I checked the Michigan case law for "selective enforcement" cases. Of the few cases that come up that use the phrase, none have anything to do with HOAs/Condos practicing selective enforcement.

However, before coming down firmly on one side or the other (or possibly in the middle) I would have to read your Bylaws and see if there is anything that I feel supports the attorney's position.

Unfortunately once again I bet you are up against this attorney, who somewhat understandably holds himself out as expert on the law, along with the rest of the board.

Note to readers about Michigan: Michigan condos' bylaws tend to include what other states call "covenants."
LouH1
(Michigan)

Posts:137


10/15/2020 6:14 PM  
Hi Augustin D, glad you are not traveling...

Ok. So you said that what I am calling selective enforcement (not enforcing one bylaw, but enforcing another one) is not considered "selective enforcement", why is that?
LouH1
(Michigan)

Posts:137


10/15/2020 6:15 PM  
So is selective enforcement not used in HOA lawsuits?
TimB4
(Virginia)

Posts:17008


10/15/2020 6:25 PM  
Selective enforcement is a defense a member would use in an action the HOA brought against them.

Here is more info on selective enforcement:

Facts About Selective Enforcement By an HOA by an attorney

Selective Enforcement Defense Against HOA

LouH1
(Michigan)

Posts:137


10/15/2020 6:31 PM  
Hey again,

No, the attorney says you can't not enforce one bylaw and then enforce another one. With this reasoning, we cannot enforce any bylaws and I think that can't be the case. They do not want to enforce any of the bylaws because they (most) have broken them anyway. The Directors think they will be sued for selective enforcement if they try to enforce any other bylaw, as they have chosen to not enforce the Architectural bylaws. (It was determined many years ago that our Architectural bylaws were unenforceable and we have done nothing to amend or change them). But our other bylaws, as I have said, look good to me, even though the attorney says we may enforce certain bylaws to which the co-owner may create a reasonable legal challenge of uncertain outcome. But wouldn't that be true of all legal challenges. I think he just wants to make a bunch of money amending them all. What do you think.

Just wondering, are we weird in Michigan with the term "covenants?" Actually our particular Association calls them both, covenants and bylaws.
AugustinD


Posts:4153


10/15/2020 6:40 PM  
Posted By LouH1 on 10/15/2020 6:14 PM
Ok. So you said that what I am calling selective enforcement (not enforcing one bylaw, but enforcing another one) is not considered "selective enforcement", why is that?
Because in the Courts, the phrase "selective enforcement" has acquired the specific legal meaning that I gave above.

If someone wants to argue that a HOA that refuses to enforce Covenant Z against any Owner, while enforcing all the other covenants, is practicing "selective enforcement," fine, but this is not what the courts recognize as "selective enforcement." In many states, condos/HOAs have a lawful right not to enforce covenants/bylaws/rules and regulations. When a condo/HOA lawfully refuses to enforce a covenant/bylaw/rule and regulation, and disputes between Owners arise having to do with violations of covenants/bylaws/rules and regs, one Owner has to sue the other.
Posted By LouH1 on 10/15/2020 6:15 PM
So is selective enforcement not used in HOA lawsuits?
"Selective enforcement" is used often as a defense by an Owner against a HOA that has brought suit against the Owner. Here are a couple of examples from the great states of Florida and California:

White Egret Condominium, Inc. v. Franklin, Florida 1979. The Florida Supreme Court tells a condominium that it may not enforce an age-restricted community's rule prohibiting kids against Mr. Franklin and not against some other units where kids were residing. See https://law.justia.com/cases/florida/supreme-court/1979/54519-0.html.

The Villas in Whispering Palms vs. Tempkin, California Court of Appeals, Fourth District, Division One, 2015. Condo says only one dog is allowed, unless xyz conditions are met. Owner Tempkin acquires two dogs. Condo brings suit against Tempkin. Tempkin claims selective enforcement. But he has not met xyz conditions. Owner Tempkin loses. See https://www.davis-stirling.com/HOME/Case-Law/Villas-v-Tempkin









MelissaP1
(Alabama)

Posts:9648


10/15/2020 6:42 PM  
Question? Does the attorney mean you can't enforce them by a certain method? Like your HOA can't enforce fines against the violator? The HOA can't remove the violation and send the owner the bill?

It's not that you can't enforce the bylaws it may be the method of which your trying to do it. Your by-laws may say you can "fine" but lacks definition of that. Doesn't say how much and/or for what. That is why one has to create a "Fine schedule" to define what the fines are for. Say $25 a day Max $100 for leaving trash can out.


There is a difference between by-laws and CC&R's. By-laws are internal to the HOA. The CC&R's are public documents filed at your local courthouse. They follow the deed of the property. They are what are more enforceable. By-laws may or may not be filed with your convenants.

Former HOA President
TimB4
(Virginia)

Posts:17008


10/15/2020 6:45 PM  
Posted By LouH1 on 10/15/2020 6:31 PM
Hey again,

No, the attorney says you can't not enforce one bylaw and then enforce another one.





Attorney's sometimes give bad advice.




AugustinD


Posts:4153


10/15/2020 6:51 PM  
Posted By LouH1 on 10/15/2020 6:31 PM
But wouldn't that be true of all legal challenges.
Exactly. I agree.

Posted By LouH1 on 10/15/2020 6:31 PM
I think he just wants to make a bunch of money amending them all. What do you think[?]
If the Bylaws are way old, and as is often advised here, a massive amendment and campaign to get the required number of owners to vote in favor of the amendment, is likely appropriate.


Posted By LouH1 on 10/15/2020 6:31 PM
Just wondering, are we weird in Michigan with the term "covenants?" Actually our particular Association calls them both, covenants and bylaws.
If I recall correctly from your Michigan condo/HOA and some other Michigan condo/hoas, Michigan Bylaws often contain lawful restrictions that, in other states, would not appear in the Bylaws but instead would appear in the Declaration of Covenants, Conditions and Restrictions. In Michigan, I do not think it matters. In other states, there is a definite hierarchy of governing docs: Declaration, Articles of Incorporation, Bylaws, Rules and Regs. (Currently I know of one fool of an attorney now in court claiming that "Board Policies" are a part of the governing documents. There is nothing in the Declaration, Articles, Byaws or Rules and Regs that even uses the word "policy." This is an example of an attorney raping a HOA.)

I'd say some states are sui generis in the way their hoa's/condo's covenants are presented. E.g. Massachusetts, New York and Michigan are way different from Florida, Arizona and California. Perhaps this has a lot to do with when developers descended on each of the aforementioned states and came up the idea of dumping significant maintenance responsibility on all volunteer HOA boards, as a way to facilitate City Council approval of their corporate goals to make not a little but instead make mountains of money.

[snark]Because money is what buys happiness. [/snark]
AugustinD


Posts:4153


10/15/2020 7:10 PM  
Posted By MelissaP1 on 10/15/2020 6:42 PM

There is a difference between by-laws and CC&R's. By-laws are internal to the HOA.
Not for Michigan Condos. From the Michigan Condo Act, Definitions section:

(9) “Condominium bylaws” or “bylaws” means the required set of bylaws for the condominium project
attached to the master deed.
(10) “Condominium documents” means the master deed, recorded pursuant to this act, and any other
instrument referred to in the master deed or bylaws which affects the rights and obligations of a co-owner in the condominium.

559.108 “Master deed” defined.
Sec. 8. “Master deed” means the condominium document recording the condominium project to which are
attached as exhibits and incorporated by reference the bylaws for the project and the condominium
subdivision plan for the project. [snip]

559.156 Bylaws; permissible provisions.
Sec. 56. The bylaws may contain provisions:
(a) As are deemed appropriate for the administration of the condominium project not inconsistent with this act or any other applicable laws.
(b) For restrictions on the sale, lease, license to use, or occupancy of condominium units.
(c) For insuring the co-owners against risks affecting the condominium project, without prejudice to the right of each co-owner to insure his condominium unit or condominium units on his own account and for his own benefit.
GeorgeS21
(Florida)

Posts:3275


10/15/2020 8:26 PM  
Lou,

Attorneys offer inaccurate advice all the time - because they are paid to do so.

Not all are this way - but, enough are to warrant this consideration.
JohnC77
(Washington)

Posts:207


10/15/2020 10:19 PM  
Posted By GeorgeS21 on 10/15/2020 8:26 PM
Lou,

Attorneys offer inaccurate advice all the time - because they are paid to do so.

Not all are this way - but, enough are to warrant this consideration.



Attorneys are PAID to provide inaccurate advice? I would challenge you on that!
MelissaP1
(Alabama)

Posts:9648


10/16/2020 4:26 AM  
Lawyers are PAID to do what you want them to do... Just ask them. They will tell you. Then quickly walk away. Why? Your NOT a legal expert THEY are! Why would you do what an unlicensed non-legal person tells you to do? It makes me question your ethics as a lawyer.

I say this because have taken legal courses in college and have dealt with many lawyers. They are NOT all equal and you do need to do your research. Educate yourself on what you want the result to be and if it is achievable by legal means. Otherwise your asking for more trouble and less money in your wallet.

Former HOA President
CathyA3
(Ohio)

Posts:1315


10/16/2020 5:27 AM  
I suggest that the OP look for language in the bylaws that says something like "failure to enforce any provisions in the governing docs does not preclude enforcement in the future".

My governing docs do have such language. It recognizes that some provisions aren't black and white and will involve judgment calls, and no two boards will view things exactly the same way. Failure to allow situations like this can unreasonably tie the hands of directors, and can force things into court that could have been resolved in other ways.
LouH1
(Michigan)

Posts:137


10/16/2020 8:13 AM  
Yes, thank you, Augustin D. I think you are correct on all matters. While I understand our bylaws are old, many of them are still pretty good Numerous lawyers have looked at them and, of course are interested in amending etc. 1. It is difficult to get 2/3 vote in a fairly apathetic community. We tried it and it failed. 2.Lawyers (more than 2) have looked at our bylaws, master deed etc. and can only say our Architectural bylaws are not usable and this has been known for years and nothing has been done about it. As far as the rest of the bylaws, they say they are subject to reasonable challenge etc. 3. The board refused to act on anything. So, I know, slowly changing the board is a good option, and it may take many years, so what do I do in the meantime?

I am aware of the Michigan Condo Act as well. So here is my question about Section 450.2525, Act 162 of 1982, Sec. 525. Taking Action Without Meeting; consent. I am assuming it is in effect at this time, am I correct? I also see that it indicates we need unanimous consent...which means all directors need to consent (or vote yes) correct? We vote by email to pay for things and requires just a majority. What we are doing is not allowed, right? 2. It says "the written consents shall be filed with the minutes......I never see any written anything and, I would think these votes should be in our minutes somewhere. Am I accurate in this assumption? Thanks again for all your expertise!
LouH1
(Michigan)

Posts:137


10/16/2020 8:15 AM  
Our governing docs have it too. Thank you for pointing out. Who is the OP?
CathyA3
(Ohio)

Posts:1315


10/16/2020 9:42 AM  
Posted By LouH1 on 10/16/2020 8:15 AM
Our governing docs have it too. Thank you for pointing out. Who is the OP?





You are - it means Original Poster. :-)
AugustinD


Posts:4153


10/16/2020 9:55 AM  
Posted By LouH1 on 10/16/2020 8:13 AM
I am aware of the Michigan Condo Act as well. So here is my question about Section 450.2525, Act 162 of 1982, Sec. 525. Taking Action Without Meeting; consent. I am assuming it is in effect at this time, am I correct? I also see that it indicates we need unanimous consent...which means all directors need to consent (or vote yes) correct?
Correct on both points. Your Board is supposed to comply with Section 450.2525 and, for an action to be valid, among other things, the directors' vote must be unanimous.
Posted By LouH1 on 10/16/2020 8:13 AM

We vote by email to pay for things and requires just a majority. What we are doing is not allowed, right?
Correct; this violates the statute. If the matter on which the directors are trying to vote by email is minor, then it can darn well wait for a regularly scheduled board meeting.
Posted By LouH1 on 10/16/2020 8:13 AM
2. It says "the written consents shall be filed with the minutes......I never see any written anything and, I would think these votes should be in our minutes somewhere. Am I accurate in this assumption?
You are correct.

You asked: What do you do in the meantime while presumably trying to get others, who think like you about these issues, on the board? My answer: I think you can either resign or you can continue with tolerating the internal conflict and emotional toll that working with law-breaking losers entails. Is the cost of this conflict worth it to you? Are you making progress in getting this board to comply with the law?
JohnC46
(South Carolina)

Posts:10014


10/16/2020 10:36 AM  
It is not uncommon for docs to have "illegal" things in them such as No Sale Shall Be Made To a Person Of Color was quite common. As it is now illegal, there is no need to pay attention to it. That said it being illegal does not make the rest of the docs illegal.

You cannot enforce illegal things in the docs but you can enforce other things in the docs.
JohnC46
(South Carolina)

Posts:10014


10/16/2020 10:37 AM  
Selective enforcement is thrown around all the time but does anyone know when and where it has been legally enforced, if at all?
AugustinD


Posts:4153


10/16/2020 10:39 AM  
Posted By JohnC46 on 10/16/2020 10:36 AM
It is not uncommon for docs to have "illegal" things in them such as No Sale Shall Be Made To a Person Of Color was quite common. As it is now illegal, there is no need to pay attention to it. That said it being illegal does not make the rest of the docs illegal.
JohnC46's argument also crossed my mind and may be completely on-point here. But without seeing the Michigan condo's Bylaws in question, I hesitate to commit fully against the condo attorney's position here.
AugustinD


Posts:4153


10/16/2020 10:48 AM  
Posted By JohnC46 on 10/16/2020 10:37 AM
Selective enforcement is thrown around all the time but does anyone know when and where it has been legally enforced, if at all?
In addition to the Florida case I cited above, there is this South Carolina case that ruled in favor of the homeowner in part on grounds of selective enforcement:

https://law.justia.com/cases/south-carolina/court-of-appeals/1985/287-s-c-1-2.html

The interested reader may want to note that capricious decision-making by a board or ARC may result in "selective enforcement" defense prevailing. In other words, when searching court opinions, one has to look for case law that involves capricious decision-making by boards. The phrase "selective enforcement" may not appear in the case at all.
GenoS
(Florida)

Posts:4130


10/16/2020 11:31 AM  
Posted By LouH1 on 10/15/2020 6:31 PM
No, the attorney says you can't not enforce one bylaw and then enforce another one.

I think it's time for another attorney because that is almost certainly wrong.
LouH1
(Michigan)

Posts:137


10/16/2020 1:32 PM  
Thank you so much, Augustin D! I am not a quitter, but I am also not a youngster. But there are advantages to being older in that I have to time to bother you and your buddies about stuff I need clarification and expert opinion on. I love this site and always appreciate your contribution as it seems the most professional and you, somehow have access to all our states and their statutes. I am amazed. I will probably hang in there and see what the next few months-year bring. Stay tuned.
LouH1
(Michigan)

Posts:137


10/16/2020 2:09 PM  
So, Mr. AugustinD, would you please provide for me your definition of "selective enforcement?" I would appreciate it very much. Does it apply to just a single bylaw or covenant...using it on one co-owner perhaps, and not another. These nummies think if you select one bylaw and enforce it on a co-owner, you can't enforce any other bylaw on anyone. I thought it was if you enforced one bylaw on one co-owner, you would need to enforce that bylaw on any other co-owner who was violating that bylaw. If you didn't, you could be sued for selective enforcement. I think I am correct, yes? So.................you can see what I am up against.
AugustinD


Posts:4153


10/16/2020 3:24 PM  
Posted By LouH1 on 10/16/2020 2:09 PM
I thought it was if you enforced one bylaw on one co-owner, you would need to enforce that bylaw on any other co-owner who was violating that bylaw. If you didn't, you could be sued for selective enforcement. I think I am correct, yes?
You are correct. As I posted earlier:
Posted By AugustinD on 10/15/2020 6:07 PM
"Selective enforcement" means the board is enforcing a bylaw/covenant/rule against one (or some) Owner(s) but not others. If a HOA takes an Owner to court, and the Owner can prove "selective enforcement" is occurring, then the judge can rule for the Owner, and against the HOA, and order that the lawsuit be dismissed.

JohnC46
(South Carolina)

Posts:10014


10/16/2020 4:13 PM  
Posted By AugustinD on 10/16/2020 10:48 AM
Posted By JohnC46 on 10/16/2020 10:37 AM
Selective enforcement is thrown around all the time but does anyone know when and where it has been legally enforced, if at all?
In addition to the Florida case I cited above, there is this South Carolina case that ruled in favor of the homeowner in part on grounds of selective enforcement:

https://law.justia.com/cases/south-carolina/court-of-appeals/1985/287-s-c-1-2.html

The interested reader may want to note that capricious decision-making by a board or ARC may result in "selective enforcement" defense prevailing. In other words, when searching court opinions, one has to look for case law that involves capricious decision-making by boards. The phrase "selective enforcement" may not appear in the case at all.



Nowhere in that case is the word "selective" used. Capricious, yes. Selective, no.
LouH1
(Michigan)

Posts:137


10/16/2020 4:17 PM  
Interesting.....
AugustinD


Posts:4153


10/16/2020 5:15 PM  
Posted By JohnC46 on 10/16/2020 4:13 PM
Posted By AugustinD on 10/16/2020 10:48 AM
Posted By JohnC46 on 10/16/2020 10:37 AM
Selective enforcement is thrown around all the time but does anyone know when and where it has been legally enforced, if at all?
In addition to the Florida case I cited above, there is this South Carolina case that ruled in favor of the homeowner in part on grounds of selective enforcement:

https://law.justia.com/cases/south-carolina/court-of-appeals/1985/287-s-c-1-2.html

The interested reader may want to note that capricious decision-making by a board or ARC may result in "selective enforcement" defense prevailing. In other words, when searching court opinions, one has to look for case law that involves capricious decision-making by boards. The phrase "selective enforcement" may not appear in the case at all.



Nowhere in that case is the word "selective" used. Capricious, yes. Selective, no.
Same difference. From http://communityassociationmanagement.com/c58-rules/c60-violations-and-enforcement/selective-ccr-enforcement/:


There are two types of selective
enforcement: 1) when an association acts arbitrarily by
enforcing some covenants but fails to enforce others; and 2)
when an association acts arbitrarily by enforcing the same
covenant differently against one owner and another. The best
reasoned case on this issue is a case from the Supreme Court
of South Carolina, Palmetto Dunes v. Brown. In that case, the
association’s covenants vested its Board with the power to
approve or disapprove construction plans based on purely
aesthetic considerations. Relying on that provision, the Board
denied an owner, Brown’s, new home construction plans on
the basis that the plans submitted by Brown showed a garage
that “overpowered” the rest of the house. Brown argued to
the Court that the Board’s decision was unreasonable and
arbitrary, in part because the Board had approved two other
similar houses.
SueW6
(Michigan)

Posts:768


10/17/2020 5:08 AM  
Lou
The idea of “action without a meeting” is used in an emergency situation. For example if a large tree fell on the community center that may call for action right away so that can be done by phone or email and then ratified at the next meeting. It is not normally used to make regular decisions like paying bills.

Your board should not be conducting business for paying bills by email. Approving expenditures is something done at a board meeting after being presented by the treasurer.

Perhaps your lawyer saw two bylaws that were conflicting with each other. That sometimes happens with old bylaws where portions of them are rewritten and someone forgets to look at what else is in the bylaws. For example a new bylaw might say no sheds can be built on the property. But buried in the bylaws somewhere might be something that says that sheds have to be painted a certain color. So that would be a conflict in the bylaws.

It would help if you stated the bylaws that are in conflict with each other.
LouH1
(Michigan)

Posts:137


10/17/2020 8:58 AM  
Thanks for your remarks. I agree our board should not be conducting business for paying bills by email. However, shouldn't the expenditure be approved (generally speaking) BEFORE it is brought to the board for approval of disbursement? Your comment sounds like it is ok to do something that is a cost to the Association before presenting the "bill" to the board. The board needs to have approved this expenditure first, and then then bill is presented to the board by the treasurer for approval of dispursement. Right>

The only bylaw I can see that might be as you describe as conflicting is actually a "shed" issue. The by-law states: no carports, detached garage or other out-building shall be erected,placed or permitted to remain on any unit." I think this applies to sheds, what do you think? So, co-owners have attached these sheds to the back/side of their garage and say has satisfied the bylaw requirement by be "attached." I think not, what do you think? There is not anything in any other bylaw that talks about outbuildings or sheds. This is the only one. Actually our bylaws are few and fairly well done, I think. But I am not an attorney.....

We were told many years ago that our Architectural restriction control bylaws were basically null and void because after the section goes through all the approval requirements, in writing, , review of architectural design etc. a whole long paragraph, it says, a typo error, I think, that the section shall "NOT" require Association approval of .... I am convinced it was a typo as without this word, it would have made perfect sense. So, what would it take to get this one word, "not" removed. We do need these controls to be in place and the community, bless it's sole, has kept their residences in compliance so far. But there has to come a time where someone might want to paint their garage door purple and we will be in a crisis. What do you suggest?

Again, my thanks to everyone of you guys and gals who provide informed and helpful replies to our sometimes, "silly" but serious to us, questions and comments. Much appreciated.

SueW6
(Michigan)

Posts:768


10/17/2020 9:17 AM  
Lou, do you have a budget? If an expenditure comes up , for example lawnmowing , there is no need for the board to motion to pay the bill if that expenditure is already included in the annual budget.

However if it is a NEW expenditure, then it goes thru the bidding process with three bids, a motion to Accept the bid.
LouH1
(Michigan)

Posts:137


10/17/2020 9:24 AM  
This is great, SueW6. Thank you. I understand this and yes we do have a budget. So if the board decides to get a lawyer....do you go through the bidding process with this as there is no budgeted funds for legal expenses, or maybe a small amount of 300 dollars. ???? And secondly, if the budgeted amount is exceeded or changed significantly, what is the process there? Thank you.
SueW6
(Michigan)

Posts:768


10/17/2020 10:49 AM  
Boards amend the budget regularly throughout the year.

If you’re board thinks it needs the serviceS of a lawyer it should pull it from the emergency fund or a another kind of fun set aside for issues that come up that are not in the budget or listed under miscellaneous.

$300 with the lawyer is probably going to get to you about an hour and a half.

It Sounds like you need the services of a parliamentarian, a specialist in bylaws, rather than a lawyer.
LouH1
(Michigan)

Posts:137


10/17/2020 11:06 AM  
A great idea. where would we find one? But...doesn't the board gave to approve this expenditures and get 3 bids? Where is the language concerning 3bids ??
JohnC46
(South Carolina)

Posts:10014


10/17/2020 11:54 AM  
Posted By LouH1 on 10/17/2020 11:06 AM
A great idea. where would we find one? But...doesn't the board gave to approve this expenditures and get 3 bids? Where is the language concerning 3bids ??



Typically a BOD will have an amount of money they can spend without prior approval. Usually in the $500 range. Also a typical Budget may well have money approved that does not need any further approval, say $1K for legal.
LouH1
(Michigan)

Posts:137


10/18/2020 1:29 PM  
Melissa P1 Yes we have fines,$ amounts etc. and have used them very infrequently. I am not familiar with CC & R's as I only have a booklet with our master deed bylaws and our other restrictions which we refer to as bylaws as well.
ChrisE8
(New York)

Posts:128


10/18/2020 1:33 PM  
Posted By LouH1 on 10/15/2020 5:26 PM
Augustin D, are you back?

Our Association has determined that because an attorney has said our Architectural bylaws are unenforceable (and this is true due to a word in the bylaws that says "NOT" enforceable and has always been there. Bylaws are nearly 20 years old. Anyway, now that an attorney has said that, he believes we cannot enforce any of the other by laws because if we did, it would be "selective enforcement" and we could be sued for that. I don't buy this argument and think they just don't want to enforce bylaws that they want to get rid of anyway. I am beside myself trying to do the community business, knowing we were elected to enforce our bylaws and knowing the majority of the community wants us to do that. I have threatened we can be sued for doing nothing all the time too. What do you suggest and what can I do about this problem? Thanks in advance!





Just fix the bylaws (by amending them, which may take a board and a member vote) so that they are enforceable, and start enforcing them. If your lawyer didn't advise that, you might want to find another lawyer.
GeorgeS21
(Florida)

Posts:3275


10/18/2020 2:01 PM  
Lou,

Prior to discussing further you need to have your Bylaws in hand. Your CCRs in hand (or whatever Michigan has for this document). Your Articles in hand. Your Rules and Regulations in hand. And, any architectural docs in hand.

You need to read and understand Michigan statute for HOA/POA/COA (your category).
JohnC46
(South Carolina)

Posts:10014


10/18/2020 3:25 PM  
Lou

Are you saying you have nor read, reread, and reread your entire documents but are shooting from the hip with some sort of a summary? If so, shame on you. Start reading.
LouH1
(Michigan)

Posts:137


10/18/2020 3:45 PM  
I am older, so have a little patience, will you please John C 46? I have read our documents many many times as well as non-profit corporation acts, Michigan Condominium Acts, Roberts Rules, etc. I am not "shooting from the hip" I am telling you what I know and asking questions about what I don't know and have actually learned a great deal from others who aren't accusatory, but instead are making a effort to understand and answer my, perhaps silly to you, but not to me, questions. Shame on you for being judgmental and accusatory.

GeorgeS21
(Florida)

Posts:3275


10/18/2020 5:17 PM  
Lou,

This is not at all clear.

A lot of folks who post here have mistaken ideas, do not even gave copies of their documents, don’t know the difference between bylaws and CCRs.

Many want simple answers - but ...
LouH1
(Michigan)

Posts:137


10/19/2020 9:22 AM  
George, nothing is clear anymore. We all want simple answers and many just aren't aware of all the specifics pertaining to by-laws, CC&R's, state statutes that apply, The Condominium Act, etc. I am sure you are not surprised by the lack of information easily available and the lack of knowledge, in general, as well.

I am a new member, I knew nothing, I have spent hours and hours reading and trying to understand what and if our old bylaws are enforceable. Studying laws, acts, asking questions of anyone who might be able to shed some light on these topics. It is very complicated. Obtaining legal opinions, is just that, "opinions"....many time biased toward spending huge amounts of money to update. And yes! Maybe that is the way to go, maybe not. Maybe there is an in between where some bylaws can be updated and others are ok. Finding a lawyer, especially during this Pandemic, to do such a thing, is extremely difficult, especially when you have a board who wants to oust all the bylaws and allow co-owners to do anything they please.

I am in a difficult situation and have been helped tremendously by HOATalk. I have been treated in a respectful manner most of the time and have ignored disrespectful interactions a few times, because I understand this is a voluntary (am assuming this, maybe am incorrect) group with great knowledge about HOAs and their complicated tasks. I know it must be frustrating to you all, at times, to receive, what you deem, as "mistaken ideas, have no document copies, or don't know the difference between bylaws and CC&Rs." I am not in that realm of questioners, but I do understand how you might think that.

Just ask that you take into consideration all the thousands of details you have learned over the years and how, people asking may actually not know hardly anything, even though they have spend many, many hours reading and trying to understand the complicated and unrecorded "rules" applied to the thousands of Associations. I am sure it is frustrating for you and others, but believe me, the questioner is oftentimes, in good faith, trying to understand and learn what they can and can't do and appreciate your patience and knowledge base and subsequent instruction and advise.

One simple question I have is: Can an Architectural bylaw be easily amended or changed when it has only one word in it "not" which disallows the entire bylaw instruction. We have been unable to use any Architectural bylaws for years because of it. If that word was removed (I think it was accidentally inserted), it would allow us to exercise these important regulations that pertain to the appearance of our homes and help maintain the value. as you might understand.

Again, thank you for your patience and understanding and for thinking about what I have said.




BillH10
(Texas)

Posts:565


10/19/2020 9:42 AM  
Lou, to the question you posed quoted below:

One simple question I have is: Can an Architectural bylaw be easily amended or changed when it has only one word in it "not" which disallows the entire bylaw instruction. We have been unable to use any Architectural bylaws for years because of it. If that word was removed (I think it was accidentally inserted), it would allow us to exercise these important regulations that pertain to the appearance of our homes and help maintain the value. as you might understand.

1. You have hypothesized the presence of the word "Not" may be a typo. Could well be. I have personal experience in contract situations in which a typo was recognized within a few weeks or a month or two after the contract was executed. The parties and, in one case, the court, agreed there was a typo. Suitable corrections were made and documentation created. BUT--it was very early on, not years later.

2. ISTR your Association is @15 years old. Absent the presence of underlying drafts of the documents which did not contain the word "Not" which were used to prepare the documents eventually executed as the final copy, I doubt you will find "an easy way out" through the typo route. Even if you have those documents, you are facing a very costly process through the courts.

3. The reality is, the difficulty of changing the word will depend on the process for amending the document:

a. If a majority or super-majority of the Board can amend the document, you have a reasonable chance of being successful.

b. If a majority or super-majority of the members of the Association must agree, it can be done but you are in for a long, hard, difficult, and frustrating slog which may take a year or two.

Why the difference? Two reasons: if the members of the Association must approve, you will be fighting apathy and, in the end, the imposition of a more restrictive process than presently exists.

Good luck



LouH1
(Michigan)

Posts:137


10/19/2020 10:17 AM  
Thank you, Bill H 10, I have read in Article XX, Amendments, Proposal: "Amendments to these bylaws may be proposed by the BOD of the Association acting upon the majority vote of the Directors or may be proposed by 1/3 of more of the co-owners by instrument in writing signed by them." Then it goes to a Meeting section, and then to Voting section which states "These bylaws may be amended by the Co-owners at a regular annual meeting or special meeting. it needs not less than 2/3 of all co-owners.

So, I was excited when I read the first part thinking the BOD, with a majority vote could amend the bylaws. But as it goes on it seems to say, they can propose but not implement action without 2/3 vote. Do you read it the same way?

Interestingly, 7 years ago, they tried to update some bylaws and we lacked by single digit votes enough to pass it, so there was positive interest at that time.

As a board we are allowed to implement "rules and regulation" as long as they don't change or interfere with the intent or meaning of existing by-laws. Guess there is no way to get around the Architectural bylaws in any meaningful way, right?

Thanks again.

LouH1
(Michigan)

Posts:137


10/19/2020 10:24 AM  
Also, I might add, Bill, the community adhered to the Architectural bylaws for many years, ignoring that word. It was amazing. People would ask permission from the board to do things to their homes and invariably, it would be approved and onward we would go. Neighbors really do want to keep there home values up and understand the need for some rules and regulations......however, time passes and owners who want to do crazy things appear on the scene and try to shake things up.

JohnC46
(South Carolina)

Posts:10014


10/19/2020 10:28 AM  
Typically it will take 2/3rds or more of all owners agreeing to make a Covenant/Deed change. For Bylaws it is typically 51% of all owners. BOD's alone can make and rescind Rules and Regulations. Many confuse the type of docs. Often lumping them all together and calling them Bylaws.

Many do not understand when it says something like 51% OF ALL OWNERS. They often read it to mean 51% of those at a meeting.
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