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Subject: HOA selectively applying rules? ignoring other rules and other home owners?
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Author Messages
MaxB4
(Maine)

Posts:701


07/14/2021 2:42 PM  
Cathy

This is poised as a question to a board member.

When I take on a new association and it has been agreed that we do monthly inspections and enforce the CCRs/Rules my software has the ability to write violation correction letter and it has a spot to cite section and language of the restriction being enforced.

I will give an example of one discrepancy, the CCRs state that something must be of a neutral color, but the rules state only three colors can be used. When I google neutral colors I come up with five basic colors. What do you suggest I put in the database, the CCRs or the Rule? In other instance, the CCRs state no waterbed and the Rules are silent.

As I stated, if an HOA has no rules, I will offer create a set based solely on what is in the CCRs. It's then given to the board for review and they can add if the authorization is in the CCRs.

When I create the database for Use Restrictions, the language always comes from the CCRs, as the document is considered legally enforceable.
MaxB4
(Maine)

Posts:701


07/14/2021 3:51 PM  
Have no idea why a property mgr. like Max would ask this question.


I'm curious, what question are you referring to?
CarissaM
(Florida)

Posts:26


07/14/2021 4:05 PM  
That is very interesting and since we don’t have any rules, something I had not considered could be an issue or even an option. So what do you do and who’s right?
TimB4
(Virginia)

Posts:17640


07/14/2021 4:58 PM  
Covenants place restrictions on individual property.

Guidelines (which I think you are referring to when you post rules) are to establish a standard for approving/disapproving requests for exterior changes. Note: because of this, one cannot be in violation of a guideline. They can only be in violation of a covenant. Typically the one that specifies exterior changes must be approved by the Association.

Rules are for common areas/elements.



Expecting that the covenants specify prior approval for exterior changes, then one should first check to see if approval was given (even verbally) before issuing violation letters.

Without more info, it's difficult to specify between the two choices you offer. I personally, believe there is a third choice and that would be failure to receive approval. However, if the covenants specify that the item can be painted a neutral color without approval - then you should specify the three identified in the guideline (rule). Otherwise, I would simply specify no approval on file. Please provide a copy of the approval or submit a request to the Association for their consideration.
CathyA3
(Ohio)

Posts:2154


07/15/2021 5:26 AM  
Posted By MaxB4 on 07/14/2021 2:42 PM
Cathy

This is poised as a question to a board member.

When I take on a new association and it has been agreed that we do monthly inspections and enforce the CCRs/Rules my software has the ability to write violation correction letter and it has a spot to cite section and language of the restriction being enforced.

I will give an example of one discrepancy, the CCRs state that something must be of a neutral color, but the rules state only three colors can be used. When I google neutral colors I come up with five basic colors. What do you suggest I put in the database, the CCRs or the Rule? In other instance, the CCRs state no waterbed and the Rules are silent.

... snip ...



In the case of the colors, I would ask the board about it since it does seem that the rules are imposing an additional restriction beyond what the CC&Rs say. You'd hope that something like that wouldn't be enough to send somebody to their lawyer, but some folks do get upset about things like this. FWIW, my CC&Rs don't say anything about colors, although we have a standard set of them chosen by the developer. I think that stuff like colors can reflect current aesthetic standards and should be more flexible (Ie, they belong in the rules rather than the CC&Rs).

With the waterbed, the CC&Rs are clear so that's what you use. Rules don't have to re-state everything that's in the CC&Rs, so being silent about something doesn't mean the restriction shouldn't be enforced.

Personal opinion: rules are for things that should be flexible to some extent: community colors, pool and clubhouse hours (since you may want to react to weather and current events), and such. CC&Rs are part of the contract on the home and are for the serious stuff, while rules help with the day-to-day smooth operations of the community. Association law seems to support this distinction, since amending CC&Rs requires a (super-)majority vote from the membership, but rules can typically be changed by board vote. But there is definitely a gray area between them, and I'm sure others could have a different and valid opinion depending on their state's laws and the nature of their community.
KerryL1
(California)

Posts:8290


07/15/2021 8:31 AM  
Tim wrote that rules are for common areas, but it depends. In our high rise HOA, there are a few rules about our condos, e.g., all window coverings must be white or off white; posters, banners, flags and non commercial signs in windows cannot exceed certain sizes; we may not tint our window glass.

So Tim's statement may apply mainly to detached homes. I do think I've seen here an HOA of detached homes where the interior window coverings had be white or off-white.
KerryL1
(California)

Posts:8290


07/15/2021 8:31 AM  
Tim wrote that rules are for common areas, but it depends. In our high rise HOA, there are a few rules about our condos, e.g., all window coverings must be white or off white; posters, banners, flags and non commercial signs in windows cannot exceed certain sizes; we may not tint our window glass.

So Tim's statement may apply mainly to detached homes. I do think I've seen here an HOA of detached homes where the interior window coverings had be white or off-white.
JohnC46
(South Carolina)

Posts:11180


07/15/2021 12:15 PM  
Kerry

We are single family homes (some duplexes) and our Covenants call for window dressings facing the street to be white or off white.
TimB4
(Virginia)

Posts:17640


07/15/2021 2:53 PM  
The bottom line will usually come down if the covenant/rule/requirement/etc. would withstand a legal challenge. This is often determined by what document the issue is recorded in.

I believe that John's Association is doing it properly having the window dressing requirement in the covenants and therefore would be able to withstand a legal challenge. I'm not positive the "rule" Kerry describes would withstand a legal challenge but I don't live in a condo unit and have a strong knowledge on their documents.

KerryL1
(California)

Posts:8290


07/15/2021 6:48 PM  
I'll bet it was JohnC's HOA I'd seen previously, that shows CC&Rs do sometimes place restrictions on non-common areas.

My error, though, is that window covering colors are in our CC&Rs and are repeated in our rules. Our CC&Rs also state that no signs, banners, flags may be placed in our condo windows, but that CC&R no longer applies and higher level documents permit non-commercial signs & realtor signs in windows along with banners and flags. The HOA has the right to specify sizes, which we do in our rules.

Finally our Architectural Guidelines state that we may not tint our windows. Our CC&Rs often defer to these guidelines.

My only point is that CC&Rs do sometimes cover items that are not in the common areas, another example is number of dogs permitted in a unit.
MaxB4
(Maine)

Posts:701


07/15/2021 7:29 PM  
The examples I gave came from one of the poster's actual CCRs and Rules, real, not hypothetical. An association's governing documents come in all shapes, sizes and flavors. Some are quite extensive with CCRS, Articles, Bylaws, Rules, Architectural Guidelines, (and I mean extensive guidelines). Some we get, well, they are lacking.

Per our contract or agreement we are on site inspection, frequency is negotiated. We use a tablet while conducting the inspection. Once a violation has been noted, a letter can be generated in seconds. Getting there, takes time.

When a new association comes aboard, one the initial software setup is done, we scrub their CCRs and Rules for all restrictions and put them into an Excel spreadsheet. We already have about 200 different form letters created depending on the stage of the violation or cure. The exact wording, chapter and verse, from the CCRs goes into their respective letters. If there are rules, they go in next. One set of CCRs may only have a handful of restrictions, another may have a hundred or more. Some may only place restrictions on common area, some may cover common area and one's property. Some may have no maintenance requirements, others are very extensive.

Same holds true for Elections Rules. I use a template to create one, if they have none. 30 minute tops to create Election Rules.

Once all the heavy lifting is done, the ship sails much more efficiently.
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