Get 1 year of free community web site hosting from Community123.com!
Monday, October 18, 2021











HOATalk is a free service of Community123.com:

Easy to use website tools to help your board
Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Subject: County Ordinances vs HOA CCR's
Prev Next
Please login to post a reply (click Member Login on the menu).
Author Messages
DebbyK1
(Georgia)

Posts:21


07/31/2009 1:54 PM  
After a lot of research several county ordinances are in conflict with our HOA's CCR's. For example, one issue is basketball goals. The county says yes to in the front yard but they must be adjacent to the driveway - the net must not face the street. Now, our CCR's say only portable bb goals & they must be kept out of the front when not in use. Who takes presidence when there are conflicts of this nature? We are in conflict with the county as well regarding commercial vehicles, fence allowances and the amount of votes it takes to turn our wet/dry pond over to the county. We are starting to have members do this same research & we aren't sure what to do.

Now then, if the county takes presidence over the HOA do we still need a quorum to change the CCR's/Bylaws to comply with the county.

Thanks

Debby
BarbaraP3
(Maryland)

Posts:90


07/31/2009 2:05 PM  
Debby,

Your CCR's take precedence over the CO regs regarding the basket ball nets. Your CCR's can be more restrictive than the CO regs, but can't be more lienent than the CO rules. If the county didn't grandfather in your CCR regarding the pond, then I think you must comply with the new regulation. Our County increased the minimum lot size but grandfathered in our community.

Barb
MaryA1


Posts:0


07/31/2009 2:14 PM  
Debby,

Your CCRs can be more restrictive than county ordinances but they cannot allow something the county prohibits. Don't let your members get away with telling you they can do something that is restricted in the CCRs because the Co ordinance allows it! You do not need to change your CCRs to agree with the Co ordinance unless the CCRs allow something the Co prohibits. Hope this helps.
DebbyK1
(Georgia)

Posts:21


07/31/2009 2:15 PM  
Thanks Barbara

Is there any experience if a member challenges ones of these differences? Who typically wins?
DebbyK1
(Georgia)

Posts:21


07/31/2009 2:17 PM  
Thanks, Mary as well, you snuck in there after I posted.
DonnaS
(Tennessee)

Posts:5671


07/31/2009 2:19 PM  


Barbara and Debbie,


The County ordinances always take precedence over HOA CC&Rs. Reading your basketball covenant is NOT in conflict with the County but merely more restrictive. Barbara is correct stating that your CC&Rs can be more restrictive and this is an example. Your CC&Rs are not altering the minimun that the County uses so you are in compliance.

I'll repost this for your association to use. This is the HEIRARCHY OF DOCS.

#1 ALL FEDERAL LAWS, INCLUDING ADA, HUD, FCC. AND ANY FEDERAL LAW

#2 ALL STATE LAWS, REGULATIONS AND STATUTES

#3 ALL COUNTY CODES, REGULATIONS AND BUILDING RESTRICTIONS

#4 CITY CODES AND REGULATIONS

#5 CC&RS OF THE ASSOCIATION

#6 ARTICLES OF INCORPORATION (Sometimes called the Charter)

#7 BYLAWS OF THE ASSOCIATION

#8 RULES & REGULATIONS, INCLUDING ARC & OTHER ADOPTED GUIDLINES
DebbyK1
(Georgia)

Posts:21


07/31/2009 2:27 PM  
That's a good list Donna, thanks for that.
MaryA1


Posts:0


07/31/2009 2:34 PM  
Donna,

Not all state laws take precedence over the CCRs. Some state: "unless otherwise stated in the community documents", meaning the CCRs prevail over the state statute.

Frankly I don't like to include the Fed, State and City/Co laws, statutes and codes in the hierarchy of governing documents. For one thing, Federal, state and local laws are not governing documents. Everyone should know that Fed law takes precedence over everything. State law does not always take precedence over the CCRs as explained above. City/co ordinances do not take precedence over CCRs because the CCRs can be more restrictive. The CCRs just cannot allow something that is prohibited by city/co code.

When speaking of the hierarchy of governing documents, only the CCRs, articles, bylaws and board adopted rules should be included.

Some may think my opinion on this is warped, but it's my opinion and I'm sticking to it.

DonnaS
(Tennessee)

Posts:5671


07/31/2009 2:56 PM  


Mary,

Don't you think that if the State says, ---"UNLESS THE GOVERNING DOCS" ETC, means that it has PRECEDENCE BUT it IS TURNING IT OVER TO THE ASSOC?

Like it or not, call them what you want, the Fed, State and City still are the heirarchy. So you stick to your opinion. You are entitled to it.
BarbaraP3
(Maryland)

Posts:90


07/31/2009 4:57 PM  
Debby,

If you CCR's restrict purple houses with pink polka dots, but the County allows that color combination.....your CCR's will win.
As stated, your CCR's can be more restrictive than the CO regulations as long as they do not violate a county regulation.
Examples would be .... permited square footage of living area, set back requirements, basically anything that requires a building permit would need to minimally meet county regulations.

Hope this helps.
RobertR1
(South Carolina)

Posts:5164


07/31/2009 7:55 PM  
Debby,
A word of caution. Make very sure of your State statutes and how they are enforced by the state. Maryland laws seem to be headed toward less conservative influence that Georgia. I am no expert, and speak only from postings on this site. I know Georgia has some strange ways of looking at Homeowners associations. Not implying they are wrong but certainly not cookie cutter copies of other states. Also Maryland has in the past few years made some sweeping and radical changes in the statute and also the enforcement of the documents.
All the opinions above should be given due consideration and should serve as guidelines to establish what is going to work for you.
JohnB7
(South Carolina)

Posts:176


08/01/2009 9:03 AM  
Posted By DebbyK1 on 07/31/2009 2:15 PM
Thanks Barbara

Is there any experience if a member challenges ones of these differences? Who typically wins?





"I faught the law....and the law won!"

(simplistic answer, but, 100% correct)
DonnaS
(Tennessee)

Posts:5671


08/01/2009 9:17 AM  


Rarely, very rarely does an owner win. Laws are written---guess what???
to be followed. Score? Law 1, owner, 0
RobertR1
(South Carolina)

Posts:5164


08/01/2009 9:27 AM  
Barbara ,

John and Donna are on the money. But maybe we can get them to respond to this scenario.

Is there a difference in the ruling of the judge (court), when:

1.You don't feel the clause or intent of your documents are proper and you actually petition a court to consider your claims. Then you provided maybe court cases or case law or something to question the legitimancy of the issue.

2. You take the association to court because you don't agree with eir actions?
DonnaS
(Tennessee)

Posts:5671


08/01/2009 10:02 AM  

Robert,

Remember back when my Association took the 2 Cadillac Escallade owners to court over the interpretation of "What is a pickup truck?" The Judge asked the Developer, under oath, what was his INTENTION of the covenant banning pickup trucks

The Developer stated that he "INTENDED" to keep out commercial and work pickups but did not mean to ban the fancy, schmancy Escallades. The Judge read outloud word for word the covenant. No where was there a distinction between fancy or work pickups. Score one--- for the documents and HOA.

But the HOA lost the part of the case where a distinction of those SUVs/PICKUPS were not considered trucks. GM sent documentation where they "segmented"(classified) them as SUVs because when people spent $65,000 for a truck, they did not want to call them trucks. Score 2--owners.

The end results were that the Escallades remained in the driveways overnight but the HOA was allowed to continue enforcing the no trucks in the driveways. In otherwaords, it was an expensive lesson for the HOA because they were judged to pay the legal bills.
MaryA1


Posts:0


08/01/2009 11:17 AM  
Donna,

If the statute says, "unless the governing doc" means the governing docs take precedence. No matter what the state law says your gov docs rule so the state law cannot take precedence. This state law would only take precedence over an HOAs gov docs that do NOT say otherwise or may be silent on the issue. This is one big difference why IMO state statutes should not be included in the hierarchy, aside from the fact that state laws are not considered "governing documents". When one says "governing documents" they are referring to the assn's CCRs, articles, bylaws and board adopted rules.

Regarding the hierarchy of documents; I agree we will have to disagree on this one. IMO, it's good to put opposing opinions out in the open for all to see. I knew you wouldn't be offended by me not agreeing with you.
DonnaS
(Tennessee)

Posts:5671


08/01/2009 11:25 AM  

Mary,

Never offended. Stubborn sometimes but not offended.
MaryA1


Posts:0


08/01/2009 11:29 AM  
Donna,

We must have come from the same mold!
MicheleD
(Kentucky)

Posts:4491


08/03/2009 8:03 PM  
As everyone else here has stated, your documents can be more restrictive than the local zoning and county codes. That does not mean they are in "conflict." It simply means the county's minimum standard is less restrictive.

In our area, for example, 8-foot fences are allowed. Our community (HOA) only allows fences to be 6-feet high.

It was challenged, we won before it even got to court. The resident's attorney advised him to drop it.

Also, the county regulations allow for above-ground pools.

Our CC&Rs do not.

We had a resident challenge that, as well, and their attorney advised them to drop it.

And, in another case, our CC&Rs define "commercial vehicles" to include company vans with signage on it. The county "definition" of "commercial vehicle" deals more with tonnage and number of axles.

Our CC&Rs were challenged, and this time the residents backed down, but not before a lawsuit was filed. They ended up "agreeing" to a court order stating that they will comply with all parts of the CC&Rs, including the commercial vehicle "definition." Plus they ended up "agreeing" to paying our attorney fees.

DonnaS
(Tennessee)

Posts:5671


08/04/2009 5:09 AM  

Sorry, I just got back to this thread and reread my post on the Heirarchy list. I should have stated that the list is the heirarchy of governing laws, codes and documents. Mary stated that Federal, State and city/municipal laws are not HOA documents. That is probably true but whatever they are called, they do have power over HOA documents that conflict with them. As everyone has stated, the HOA documents may define and be more restrictive than the others but may never override nor remove them.
MaryA1


Posts:0


08/04/2009 8:15 AM  
Posted By DonnaS on 08/04/2009 5:09 AM

Sorry, I just got back to this thread and reread my post on the Heirarchy list. I should have stated that the list is the heirarchy of governing laws, codes and documents. Mary stated that Federal, State and city/municipal laws are not HOA documents. That is probably true but whatever they are called, they do have power over HOA documents that conflict with them. As everyone has stated, the HOA documents may define and be more restrictive than the others but may never override nor remove them.





Donna,

Sorry, but your last line is not quite true. If the state statute says, "unless otherwise provided in the community documents", it means the HOA gov docs prevail (override) the state law. Also if a covenant is more restrictive than city/co code it effectively overrides that city code.

HOA BODs must be familiar with Fed, State and local laws/ordinances and they must be aware that in some instances their gov docs may prevail. It's just not a cut and dried application.
JohnB26


Posts:0


08/04/2009 3:53 PM  
Posted By MaryA1 on 08/04/2009 8:15 AM
Posted By DonnaS on 08/04/2009 5:09 AM

Sorry, I just got back to this thread and reread my post on the Heirarchy list. I should have stated that the list is the heirarchy of governing laws, codes and documents. Mary stated that Federal, State and city/municipal laws are not HOA documents. That is probably true but whatever they are called, they do have power over HOA documents that conflict with them. As everyone has stated, the HOA documents may define and be more restrictive than the others but may never override nor remove them.





Donna,

Sorry, but your last line is not quite true. If the state statute says, "unless otherwise provided in the community documents", it means the HOA gov docs prevail (override) the state law. Also if a covenant is more restrictive than city/co code it effectively overrides that city code.

HOA BODs must be familiar with Fed, State and local laws/ordinances and they must be aware that in some instances their gov docs may prevail. It's just not a cut and dried application.




Wrong...AGAIN!
"....unless otherwise provided in the community documents", it means the HOA gov docs prevail (override) the state law."
The gov docs do not over-ride the state law, simply that they are/may be applicable to the particular section in question.

Civilly yours,
JohnB26
MicheleD
(Kentucky)

Posts:4491


08/04/2009 7:12 PM  
Posted By JohnB26 on 08/04/2009 3:53 PM
Posted By MaryA1 on 08/04/2009 8:15 AM
Posted By DonnaS on 08/04/2009 5:09 AM

Sorry, I just got back to this thread and reread my post on the Heirarchy list. I should have stated that the list is the heirarchy of governing laws, codes and documents. Mary stated that Federal, State and city/municipal laws are not HOA documents. That is probably true but whatever they are called, they do have power over HOA documents that conflict with them. As everyone has stated, the HOA documents may define and be more restrictive than the others but may never override nor remove them.





Donna,

Sorry, but your last line is not quite true. If the state statute says, "unless otherwise provided in the community documents", it means the HOA gov docs prevail (override) the state law. Also if a covenant is more restrictive than city/co code it effectively overrides that city code.

HOA BODs must be familiar with Fed, State and local laws/ordinances and they must be aware that in some instances their gov docs may prevail. It's just not a cut and dried application.




Wrong...AGAIN!
"....unless otherwise provided in the community documents", it means the HOA gov docs prevail (override) the state law."
The gov docs do not over-ride the state law, simply that they are/may be applicable to the particular section in question.

Civilly yours,
JohnB26


You are really cracking me up.

What an exercise in hair splitting. . .and "override" that section if they apply.

Po-tay-toe, Po-tah-toe.
JohnB26


Posts:0


08/05/2009 5:37 AM  
Posted By MicheleD on 08/04/2009 7:12 PM
Posted By JohnB26 on 08/04/2009 3:53 PM
Posted By MaryA1 on 08/04/2009 8:15 AM
Posted By DonnaS on 08/04/2009 5:09 AM

Sorry, I just got back to this thread and reread my post on the Heirarchy list. I should have stated that the list is the heirarchy of governing laws, codes and documents. Mary stated that Federal, State and city/municipal laws are not HOA documents. That is probably true but whatever they are called, they do have power over HOA documents that conflict with them. As everyone has stated, the HOA documents may define and be more restrictive than the others but may never override nor remove them.





Donna,

Sorry, but your last line is not quite true. If the state statute says, "unless otherwise provided in the community documents", it means the HOA gov docs prevail (override) the state law. Also if a covenant is more restrictive than city/co code it effectively overrides that city code.

HOA BODs must be familiar with Fed, State and local laws/ordinances and they must be aware that in some instances their gov docs may prevail. It's just not a cut and dried application.




Wrong...AGAIN!
"....unless otherwise provided in the community documents", it means the HOA gov docs prevail (override) the state law."
The gov docs do not over-ride the state law, simply that they are/may be applicable to the particular section in question.

Civilly yours,
JohnB26


You are really cracking me up.

What an exercise in hair splitting. . .and "override" that section if they apply.

Po-tay-toe, Po-tah-toe.




I don't think I'm hair-splitting.
Words have meanings and different words have (even though slight) different meanings.
It is the improper use (for the intended meaning) of words which keeps attorneys rich.
The poster in question tends not to acknowledge that HOAs operate under and within federal, state, and local law(s).
case in point: the deleted OTARD topip re: fixed wireless signals
MicheleD
(Kentucky)

Posts:4491


08/05/2009 6:04 AM  
Really? You're telling a retired communication specialist that words have meaning? Kooky!

Your words, however, in this particular case are hair splitting.

Then again, that's just my opinion.

MaryA1


Posts:0


08/05/2009 7:53 AM  
Michele,

I agree, he IS splitting hairs. Afterall, who said the statement "Unless otherwise stated in the community documents" pertained to only one sub-section of the statute?

But, the only reason he even responded is because the msg was written by me. He can't get over the OTARD thread which was removed because of HIS sarcasm. I have no use for people who are compelled to turn nasty when someone disagrees with them.
JohnB26


Posts:0


08/05/2009 9:11 AM  
Posted By MaryA1 on 08/05/2009 7:53 AM
Michele,

I agree, he IS splitting hairs. Afterall, who said the statement "Unless otherwise stated in the community documents" pertained to only one sub-section of the statute?

But, the only reason he even responded is because the msg was written by me. He can't get over the OTARD thread which was removed because of HIS sarcasm. I have no use for people who are compelled to turn nasty when someone disagrees with them.






"Unless otherwise stated in the community documents" is NOT written into state statues as a 'preamble' to the entire satute but is used as needed for each PARTICULAR section/subsection as needed.
MaryA1


Posts:0


08/05/2009 1:11 PM  
Posted By JohnB26 on 08/05/2009 9:11 AM


"Unless otherwise stated in the community documents" is NOT written into state statues as a 'preamble' to the entire satute but is used as needed for each PARTICULAR section/subsection as needed.





John,

Following is an an AZ statute:

"33-1810. Board of directors; annual audit

Unless any provision in the planned community documents requires an annual audit by a certified public accountant, the board of directors shall provide for an annual financial audit, review or compilation of the association. The audit, review or compilation shall be completed no later than one hundred eighty days after the end of the association's fiscal year and shall be made available upon request to the members within thirty days after its completion."

Never say never!
GlenL
(Ohio)

Posts:5491


08/05/2009 2:09 PM  
Mary now who is the one splitting hairs, that is for a particular sub-section on audits not the entire Title 33 nor does it apply to Chapter 16 on Planned Communities.

33-1801. Applicability; exemption

A. This chapter applies to all planned communities.

B. Notwithstanding any provisions in the community documents, this chapter does not apply to any school that receives monies from this state, including a charter school, and a school is exempt from regulation or any enforcement action by any homeowners' association that is subject to this chapter. With the exception of home schools as defined in section 15-802, schools shall not be established within the living units of a homeowners' association. The homeowners' association may enter into a contractual agreement with a school district or charter school to allow use of the homeowners' association's common areas by the school district or charter school.

C. This chapter does not apply to timeshare plans or associations that are subject to chapter 20 of this title.


Note that nowhere does this section give cart blance to ignore all of the HOA laws if covered under the existing HOA documents but only certain subsections can be ignored IF the section allows it and it is already covered in the documents. Before you go after others for the tone of their posts, I suggest you go back and examine your recent postings.

Studies show that 5 out of 4 people have problems with fractions
JohnB26


Posts:0


08/05/2009 3:00 PM  
Glen L,

Please do not confuse the other poster with the facts ;)
DonnaS
(Tennessee)

Posts:5671


08/05/2009 3:00 PM  

Debbie,


If you think that you were confused on your original posting, the last 10 replies should have sent you over the deep end. I can't even tell what this thread is about anymore.

I think that you asked, "Who takes presidence when there are conflicts of this nature? We are in conflict with the county as well regarding commercial vehicles, fence allowances and the amount of votes it takes to turn our wet/dry pond over to the county. "

Basic legal websites list the heirarchy of governing laws and documents, which I posted and from there it went down to splitting hairs.
MaryA1


Posts:0


08/05/2009 3:17 PM  
Glen,

A statute is one particular law found in a particular Chapter; at least that's the way I see it. When I refer to a statute I'm only referring to one law not all the laws contained in the Chapter.

BTW, the statute I copied IS contained in Chapt 16 and is, in fact, an "article" of that chapter not a "subsection". John said the "unless otherwise" clause would not be for the whole statute but only for a particular section or subsection. I showed him a statute where the clause applies to the entire statute.

When did I say the "unless otherwise" clause allowed you to ignore all the other HOA statutes? And, since when were we talking about all the statutes contained in Title 33 or even Chapter 16? I think you have totally misread what John & I have been discussing. Thanks for the suggestion, but I don't need "go back and examine my(your) recent postings"!
MicheleD
(Kentucky)

Posts:4491


08/05/2009 4:59 PM  
Posted By DonnaS on 08/05/2009 3:00 PM

Debbie,


If you think that you were confused on your original posting, the last 10 replies should have sent you over the deep end. I can't even tell what this thread is about anymore.

I think that you asked, "Who takes presidence when there are conflicts of this nature? We are in conflict with the county as well regarding commercial vehicles, fence allowances and the amount of votes it takes to turn our wet/dry pond over to the county. "

Basic legal websites list the heirarchy of governing laws and documents, which I posted and from there it went down to splitting hairs.





But Donna, the key on this (and her original question) is that the CC&Rs are NOT in conflict with local ordinances.

If she comes away from this thread thinking that, then we have royally screwed up.

As a reminder:

CC&Rs can be MORE restrictive, but not LESS restrictive, than local, fed. or state regs. (Example, IF local ordinances say fences MUST be at least 6 feet high, and the CC&Rs require 8-foot fences, there is no conflict. IF, however, the CC&Rs require 4-foot fences, then they ARE in conflict and are unenforceable.)

If they are MORE restrictive they are not in conflict and they still can and should be enforced.

DonnaS
(Tennessee)

Posts:5671


08/05/2009 5:03 PM  


That's right Michelle but we told her that after just a couple of replys and then it went into some outer world place from there with arguments on splitting hairs .
MicheleD
(Kentucky)

Posts:4491


08/05/2009 5:17 PM  
Quite possibly because we have a new poster who likes to see himself speak. And dearly wants to be "right" in every post.

MaryA1


Posts:0


08/06/2009 6:46 AM  
Right, Michele. And if "I" disagree with him (and you may be next! ), look out!!! The first OTARD thread was removed because of his sarcasm. I guess he learned his lesson about sarcasm so now he's just being obnoxious.
DebbyK1
(Georgia)

Posts:21


08/06/2009 7:28 AM  
I've got the drift. Our CCR's are just more restrictive which is acceptable.

Thanks for everyone's input
MicheleD
(Kentucky)

Posts:4491


08/06/2009 7:46 AM  
Posted By DebbyK1 on 08/06/2009 7:28 AM
I've got the drift. Our CCR's are just more restrictive which is acceptable.

Thanks for everyone's input


Great! Another newbie satisfied!
Please login to post a reply (click Member Login on the menu).
Forums > Homeowner Association > HOA Discussions > County Ordinances vs HOA CCR's



Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.







General Legal Notice:  The content of forum messages are from the posting member and have not been reviewed nor endorsed by HOATalk.com.  Messages posted by HOATalk or other members are for informational purposes only, are not legal or professional advice and do not constitute an attorney-client relationship.  Readers should not act upon this information without seeking professional counsel.  HOATalk is not a licensed attorney, CPA, tax advisor, financial advisor or any other licensed professional.  HOATalk accepts ads from sponsors but does not verify sponsor qualifications nor endorse/guarantee any sponsor's product or service.
Legal Notice For Messages Posted by Sponsoring Attorneys: This message has been prepared by the sponsoring attorney for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Readers of HOATalk.com should not act on this information without seeking professional counsel. Please do not send any sponsoring attorney confidential information unless you speak with the sponsoring attorney or an attorney from the sponsoring attorney’s firm and get authorization to send that information to them. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. Sponsoring attorneys that post messages here are licensed to practice law in a specific state or states as indicated in their message signature or sponsor’s profile page. (NOTE: A ‘sponsoring attorney’ is an attorney that is a HOATalk.com official sponsor and is identified as such in the posted message or on our sponsor page.)

Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions )   Terms Of Use  Privacy Statement