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Subject: By-Laws vs. CC&Rs
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Author Messages
DeanB
(West Virginia)

Posts:2


04/28/2006 8:07 AM  
A question has come up regarding which takes precedent. Do the By-Laws supercede the CC&Rs, or is it the other way around.

Example: Our community consists of five separate sections. One section allows trailers or temporary structures to be parked on the homeowners lot. The others prohibit this action. As combining the CC&Rs is an expensive undertaking, we would like to prohibit this action, as well as other, by addressing same in the By-Laws, which covers the entire community as a whole.

Any thoughts or opinions on this matter?
SwanB
(Washington)

Posts:199


04/28/2006 8:46 AM  
I believe this is a question your legal counsel should best address. My understanding from years of practice is that the Bylaws are first and foremost, then the CC&Rs but I could be very wrong.
However, my question to you is this? Did your association start out as smaller ones who then combined and this is why you have this anomaly?
RogerB
(Colorado)

Posts:5067


04/28/2006 9:15 AM  
Dean, the CC&Rs control over the By-laws. You can not address this by amending the By-laws, however, you amend the CC&Rs at little expense. You do not need to combine with another HOA. I am presuming by different sections this is similar to: the Ranch Filing 1, the Ranch Filing 2, ..., the Ranch Filing 11. Each is a separate HOA with their own Declaration.
DeanB
(West Virginia)

Posts:2


04/28/2006 9:23 AM  
Kevin & Swan:

As for the first four sections, information has it that, the developer would purchase a parcel of property, develop that parcel, file the CC&Rs for that parcel with the clerk’s office and upon completion of same, move onto purchasing additional property which adjoined the development and begin the process all over.

Why he would have done it in that manner, I have no clue.

As for the fifth and final section, that sections CC&Rs are filed under a completely different plats CC&Rs. The section was purchased by this communities developer, developed and than the CC&Rs were updated to indicate the change. They are thus, part of this development and fall under our By-Laws.

That’s where the problem lies. That plats CC&Rs clearly states that temporary structures, a.k.a trailers, are permitted on the property. However, the development of which it is now a part of, do not.
MarieR
(Iowa)

Posts:4


05/10/2006 9:35 AM  
Roger -

I'm interested that you said the CC&R's should be easy to amend.

Our attorney has said the CC&R's are a binding contract under which members purchased their homes & therefore not amendable. They have language that allows selective enforcement, so we have been able to reconcile the disparities in the various 12 plats through which covenants we enforce.

Is there some background on this available?

Our attorney typically represents developers - he's a holdover from the transition to homeowner control - so It's not clear he
would be inclined to suggest change to the very CC&R's that he wrote.
RogerB
(Colorado)

Posts:5067


05/10/2006 2:00 PM  
Marie, we assist HOAs in amending their CC&Rs all the time. Often no attorney is employed. Check your Declaration of CC&Rs, they should advise if and how that document can be amended. In Colorado it usually takes 2/3 approval of all homeowners.

We normally use a written ballot with the proposed amendment and a separate letter listing the pros and cons. Upon receipt of 2/3 of all owners approving in writting, an instrument which includes the Amendment is drafted for filing. It is signed by authorized officers of the HOA and notorized, then filed with the County Clerk. The ballots are preserved in case there is a challenge to the filing.
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