Changing CCR & Bylaws

Started by KrystaT • 21 replies • 2642 views

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KrystaT (Florida)
Posts: 58

Posted:

Hi, I have another question....I've seen mention on this site about adopting "rules" to forgo the lengthly ammendment process. Is that correct? I was under the impression any change to your original documents had to go for a super majority 2/3 vote from the HOA, once approved go through lawyer/state/filed w/ county. I am confused about the correct procedure.

Our documents are VERY vague and generic, I would like to clean them up, but was unsure about being able to get that many votes from the homeowners.

Please fill me in on the correct process.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Krysta,

There is a "chain of command" or Heirarchy of importance to your documents.They are how you govern your association. As I am a documents person, I can guide you thru this. This is how the importance of governing documents is listed.

1) ALL FEDERAL LAWS, (HUD, AWDA,FCC, any and all Federal laws)
2)State Laws and Statutes (720, which is HOA, 718, CONDO, 617 NOT FOR PRO)
3)County Codes, building, etc
4) City or Municipality
5) YOUR PROTECTIVE COVENANTS (CC&RS)
6) ARTICLES OF INC as a Not For Profit Corp.
7) BYLAWS
8) RULES AND REGULATIONS (Those adopted by the B.O.D )

The only items that can be changed WITHOUT a vote by the community is the Rules and Regulations. These are rules that are written and voted upon by the Board only. BUT, they may NOT conflict with your Protective Covenants and ByLaws.

Example: If the Covs or ByLaws say that there can be no pets allowed, the a rule cannot come along and say--dogs must be leashed. The covenants say NO DOGS,and the rules must follow that.

The very important thing here is conflict in the Docs with Rules and Regs.. Any covenant and bylaw can be changed by a vote from the entire membership. What your percentage to pass is, I don't know but you used 2/3rds, so I imagine that is what your Articles and Bylaws state.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Krysta,

Another part to your question was that you did not think that you could get that many votes. If you have real important items that you truely feel need amending, then you and everyone else who agrees with you, have to go out and do leg work. We had a very important change to our Articles of inc, reguarding increasing our Board from 3 to 5. The association is way too big for 3 so this was a must.

We went door to door, having people sign their votes and we carried them back to the meeting. A great suggestion is to lower the number to pass amendments from 2/3, down to majority or a given number--say from 100 to pass, down to 75 or whatever a majority might be. It will make functioning as a Board much easier to get things accomplished. This is not something that one can sit and think about. It takes action on everyones part who wants a better system than you have right now.

TomS11 (Florida)
Posts: 29

Posted:

Kristal,
my docs say 2/3 and so i was involved in admending them on two occaisions.
what we did was go to the attorney to get the correct form and language for the pettion,then a couple of us went door to door and even utilized one of the dues mailings and inserted the pettion in there. as i remember ther was no time limit on it or if there was it was pretty liberal. most good bods will amend thier docs right after the turn over from the builder because they are primarily in the builders interest.

KrystaT (Florida)
Posts: 58

Posted:

I have little bit of an issue there. My CC&R's are listed together. It'a secction of our documents titled " Declaration of Covenants, Conditions and Restrictions." Seperated by in Articles are sveral different topics,"covenant for maintenance assessments" and "Use Restrictions" are the 2 with the words in their title.
There aren't any rules listed, and from reading the past 5 yrs of meeting minutes I don't see that any were made.
So how can I make a change if they're all listed together? does it matter? Can I make changews as long as it's not to that paragraph directly? Hope what I'm saying makes sense.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Krysta,

Your documents are just as they should be

The Declaration of Covenants, Conditions and Restrictions are just that--CC&Rs.
They are the most important part of your documents. They tell you what are the BIG rules and restrictions of your association. Use restriction, maintenances and assessments are part of that section.

The Articles of Inc basically will tell you about operating your association, your voting requirements, amount of Board members, all of the stuff that the State requires from you as a corporation.

ByLaws will be written from these above catagories and then made more specific, such as how to vote, times, what is under owners care and what is association care and daily operating rules.voting

The Rules and regs usually are sent to the owners in a booklet or pamphlet form. Nothing formal as they can be changed easily by the BOD. This is where the Board can regulate smaller items, such as hours of moving, office proceedures, etc.

What you need to do is to read and reread your Protective Covenants (CC&Rs) Form a committee to write a rules and regs booklet. Get help from as many others as you can for now.

KrystaT (Florida)
Posts: 58

Posted:

Just to make sure I understand....The rules and reg's are a seperate entity adopted by the board, not part of the CC&R's that I was given at the closing.
It's an adopted part of the CCR's not an ammendment, and can change monthly if needed, by a majority vote from the BOD. Am I right?

DonnaS (Tennessee)
Posts: 5,671

Posted:

YUP!! YOU GOT IT BABE!!!

TomS11 (Florida)
Posts: 29

Posted:

dont let it confuse you the declarations and by laws are basicly the same thing then you have articles of inc. which covers corparate struture and stuff like indemnificatoin of bod.
what your going to deal with is your declaration of covenants and restrictions. if any bod ever ammened them they hopfully be reflected in the minutes and as an addendum to the docs.( additional pages). and just because things seem to be lumped together dont worry,its all the same.your docs should start with the recitals and then deal with things like voting,classes of members, easments,weather or not the assoc. paints your house or it is your responsibility.
also pets, how the meetings of the arc. ordrb should be run.
so in ammending tour docs. you might be changing somthing in there or just adding somthing the members want, like adopting a rule concerning rentals.you get the 2/3 you need then file it with the county. its your own little government the membership can make the rules. these are permanent changes to your docs unless in the future you change them again., as opposed to policy created by a bod which can not conflict with the docs and which do not require any vote of the membership,and can be changed by the next years bod. hope i helped

KrystaT (Florida)
Posts: 58

Posted:

ok,good.

Do you enforce the rules & regs the same as the CCR? I know I will get a lot of fights about this. People telling me they did not approve, they're not going to follow etc. Is there anything in the statutes that I could quote in case it comes up?

TomS11 (Florida)
Posts: 29

Posted:

Krital let me add some more hope i didnt add to the confusion.

the docs are what the developer handed the community to governyour selves as mandated by the state plus what ever else they wanted to throw in .
the rules and regs are what the the first second or tenth wanted for the community and are not part of the docs or they were like in my community, sugessted by the rules and regs committe and then adopted by the bod. but if you realy like one or two of those regs you can get the membership to ammend the docs and add them. i think you are going to be a good board member because you ask questions. and even when you think you know most of it,keep asking questions, especialy of the membership,that is good leadership.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Krysta,

Once you get the Rules and Regs written, you will need to send a copy to all of the membership 14 days prior to a duly called membership meeting. You must make certain that they are not conflicting any of your CC&Rs, including your BYLAWS.

I'll say this again--14 days prior to a meeting, the members must have a copy of the proposed Rules and Regs. The meeting agenda MUST state that the Board will vote on the R.& Rs. The Board only votes on this. You will probably get some members who will be there complaining about something. Hear them out and if there are some genuine issues, you can just delete them from the rules list.

Also very important, do not pass R. & Rs. that you are not willing and able to enforce. I hope that you have some enforcement powers in those CC&Rs. It will state that you have the ability to enforce according to the Laws of the State of Florida. Then the Statutes take over as how and when to fine, etc.

TomS11 (Florida)
Posts: 29

Posted:

they have the same the same strenth as long as they dont conflict. when making rules,just put it on the scale, IS THIS GOOD FOR THE HEALTH , AND LONG TERM INTEREST OF THE ASSOC. THE ASSOC. LIKE THE REPUBLIC MUST BE PRESERVED AND EXSISTS IN PERPETUITY.

KrystaT (Florida)
Posts: 58

Posted:

There are some eonforcement issues that have been brought up. Some people feel we don't have enough "power" of enforcement. Nowhere in our documents does it state we can fine homeowners. The only enforcement it lists are liens against non-payment of assessments. It has been brought up we should ammend the docs to add fines for CCR violations. I don't think that's a bad idea.
Could fines be assessed for rules and reg's also?

Tom, thanks for the compliment. I am a new pres.watching my neighborhood go downhill, and it seems few people have the time/willingness to do anything. I'm trying to do all I can to make things better. I do ask a lot of questions....until I am sure I understand. I'm even taking notes so I can try to research further and relay my new found knowledge to my other board members.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Krysta,
Well, it sounds like you are on your way. Keep a good attitude and it will all fall into place.

Yes, you will have to have an amendment to your Protective covenants (CC&Rs) as amendment to allow fining. That you will need to have a legal person write for you or at least to have it worded properly. As you stand now, there is no provisions for fining so you cannot do it for violation to either your R and Rs or CC&Rs. But you have the ability to lein for non payments so that is a start. Good Luck to you. You sound sincerely interested in your association.

TomS11 (Florida)
Posts: 29

Posted:

i belive the power to fine lies in devoloping your rules and regs ask donna.
be aware that now under 720 you must first appoint a fining committe who are not bod and are members and the amount is limited.
violations for non payment of dues is diff. and more powerfull.although i am for limited use of the attorney i would say that because it sounds like you guys are starting from scratch because baisicly nothing was being done before,get with the attorney and have him start a road map to follow .also a good manag. co. will guide you and have the expertise and resourses youneed.

things take money so if you need to asses and it is justified do it. reach out to the members by holding regular meetings form committes, this where your support will come from. be fair,firm,honest and acessable.

PaulM (Pennsylvania)
Posts: 1,347

Posted:

KrystaT: Be careful here. Though the Board can change the Rules as you state, as often as monthly, that is certainly not the way to go.

The Rules & Regulations MUST be an off shoot of the legal restrictions and/or the allowances as taken from the CC&Rs. They can clarify, specify or make clearer what the CC&Rs state, but the Rules CANNOT change the intent of the CC&Rs. To change the intent of the CC&Rs require an amendment, a vote of the membership. To create Rules as just explained do not require a vote of the membership.

You need to refer to your CC&Rs to learn if indeed they allow Rules to be initiated by the Board. To state again, Rules which clarify or specify CC&R dictates should not have to be 'changed monthly' or even with each new Board coming into authority, but with new understanding of CC&Rs, or to make clear something which previously was confusing. Rules need to be treated with authority and respect, just as other docs are. And, once instituted by the Board, to be communicated to the membership in written form, also with an effective date.

TomS11 (Florida)
Posts: 29

Posted:

Kristal let me reiterate, the mangt. co. might be your cheapest and most direct route. you are paying them and should be agree to sit and take time to tell you all you need to know. they make sugestions, you implement the policy.
but i can tell you some of them bear watching,they might be part of what got you where you are,feel them out.

KrystaT (Florida)
Posts: 58

Posted:

Tom thanks, but we've had a man. co. before, and maybe that's just not for us right now.
Paul, thanks for the advice but I was talking figuratively, not literally about monthly changes.

CarolF (Florida)
Posts: 435

Posted:

Donna -I have a question. Is the original Plat higher than the Declaration if there seems to be some discrepancy?

DonnaS (Tennessee)
Posts: 5,671

Posted:

Carol,
The original Plat has nothing to do with any of your association documents and that includes your Declaration. There might be wording in the Declaration as to County allowences and regulations. The Plat was the plan that the Developer and the County agreed on for the construction of the developement.

Plats set the numer of units per land space, amount of green space, amount of hard space, waterways and infrastructure and etc. I might have forgotten something but you get the jist of this.
What are you referring to as a "discrepancy? None of these documents are foolproof but the County almost always has presidence so let me know what you've got going there.

CarolF (Florida)
Posts: 435

Posted:

Donna - I think you answered my question. Thanks

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