hierarchy of docs: Declaration vs. Rules

Hi!

I decide to start a new post with my questions regarding the hierarchy of documents. From DonnaS (thank you!), the order is:

1) FEDERAL LAWS--- Including FCC, HUD, ADA,and all other federal Laws

2) ALL STATE LAWS, Statutes and Codes

3) COUNTY, CITY AND LOCAL CODES AND LAWS

4) DECLARATION OF PROTECTIVE COVENANTS (CC&RS)

5) ARTICLES OF INC (SOME CALL IT CHARTERS)

6) BY LAWS

7) RULES AND REGULATIONS of the Association

Here is a scenario:

Our CCRs address alterations/additions by HOs: prior to an addition, alteration or improvement to the Common Elements, written consent is required from the Board. The Exclusive Limited Common Elements are specifically excluded (or have I misunderstood our CCRs and my question is moot?).

Here is the actual language in our CCRs:
“Without the prior consent of the Board, an Owner shall not make any additions, alterations or improvements to any part of the Common Elements (other than Exclusive Limited Common elements appurtenant to his Dwelling Unit)

nor make any additions, alterations or improvements to his Dwelling Unit or to the Exclusive Limited Common Elements appurtenant thereto where such work alters the structure of the Dwelling Unit or the Exclusive Limited Common Element appurtenant thereto or increases the cost of insurance required to be carried by the Board hereunder.”

Our Rules/Regs state that prior written consent of the Board is required for alterations, additions, or replacements of Common Elements AND the Exclusive Limited Common Elements.

Which document prevails? The CCRs or the Rules? In other words, is approval of the BOD needed prior to an alteration or replacement of an Exclusive Limited Common Element?

Thank you!
Bonnie

So, if I understand you correctly, the CCRs and Rules are addressing only the Common Elements, because the Common elements are defined as other than the Exclusive Limited Common Elements?

And if that is the case, then Board approval in writing only pertains to the Common Elements? (in your opinion…)

Thanks, Susan,
Bonnie

First it talks about the common elements:

"Common Elements (other than Exclusive Limited Common elements appurtenant to his Dwelling Unit)"

then it says "NOR to the Dwelling unit or to the Exclusive Limited Common elements . . ."

So that means ALL THREE AREAS (common elements, dwellings, and exclusive limited common elements) are not to have any additions, alterations, or improvement unless the board approves.

The Rule says you must have this approval IN WRITING.

Bonnie,

IMO, the board-adopted rule changes the meaning of the CCR restriction, which I would say they do NOT have authority to do. The CCRs specifically states approval is only required for changes to the Exclusive Limited Common Area ". . .where such work alters the structure of the dwelling unit or the exclusive limited common element. . ." However, the rules specifically states approval is required for Exclusive Limited Common Elements -- period.

Mary exclusive limited common elements would be something such as a patio or deck; something that is set aside for the exclusive use of the H/O but not contained in the unit itself.

The structure of the sentence is:

you can't do this, nor can you do that.

There are 3 things that must get board approval: common element, dwelling and the exclusive common element.

Hello…

Much food for thought this morning – thank you all.

First, as background: we are condos with 4-6 units per building (look like townhomes).

My interpretation is that:
• Alterations, etc. to Common Elements require written Board approval
• Alterations, etc. to Exclusive Limited Common Elements (ELCE) that affect structure of dwelling unit or increase cost of insurance require written Board approval

Therefore, I would conclude that alterations which DO NOT affect structure nor increase cost of insurance DO NOT require writtten Board approval.

This would make sense (to me) since HOA is responsible for maintaining the structural components and the insurance – per Declaration.

The definition of ELCE (from Declaration): a portion or portions of Common Elements which are appurtenant to and for the exclusive use of the Owner of the Dwelling Unit and shall include the following:

perimeter doors and windows (including patio doors); interior surface of walls, ceilings and floors which define the boundary planes of the Dwelling Unit, and any system or component part thereof which serves the Dwelling Unit exclusively to the extent that such system or component part is located outside the boundaries of the Dwelling Unit.

Based on what the Declaration states, any alterations, etc. to the floors, walls, ceiling (painting, wallpaper, new flooring) would not require written Board approval.

Alterations, etc. to other ELCEs (windows, doors, vents & pipes serving only that Dwelling Unit) also would not require written Board approval.

This is IF the alteration does not affect the structure of the building nor increase the cost of insurance.

You have all been very helpful and I welcome any additional thoughts on this. This is all very enlightening to me.

Thank you – Bonnie

Kirk – you make a good point about maintaining consistency in the exteriors of the buildings – same or similar doors, windows, decks, patios, and the like. This is addressed in our Rules which state: “Replacement of windows, patio doors, skylights, and other doors must be like that which were originally installed by the builder.” The Declaration does not make any such distinctions nor require exterior consistency for anything (except for storm doors). [I note that our Board has not been consistent in requiring alterations to the exteriors to be consistent - but this issue is for another discussion.]

Given all of this, my question still stands – which doc “rules”? The Declaration or the Rules?
Is written approval required for alterations to the ELCEs (as they are defined in the Declaration)?
Thanks! Bonnie
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From Kirk:
08/14/2008 1:33 PM

Without the prior consent of the Board, an Owner shall not make any additions, alterations or improvements to any part of the Common Elements (other than Exclusive Limited Common elements appurtenant to his Dwelling Unit)

nor make any additions, alterations or improvements to his Dwelling Unit or to the Exclusive Limited Common Elements appurtenant thereto where such work alters the structure of the Dwelling Unit or the Exclusive Limited Common Element appurtenant thereto or increases the cost of insurance required to be carried by the Board hereunder.

Given the section that is now underlines I think the BOD is within their jurisdiction to require permissions to any changes inside the Exclusive Limited elements. They have the right (and duty) to ensure that changes to this area do not involve structural changes, nor incur higher insurance costs.

Also, based on my understanding of a Exclusive Limited common elements they would have some say because of the visibility factor. The thing is that most of these areas are visible to other units and/or the street. Thus a change to them can affect the value of others and of the whole. It is the same basis of why in detached units BODs have the ability to restrict what happens in people's yard.
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sorry - I need to learn to use the "quote" feature...

Hi Glen – No, this is not about my window issue - that issue has gone a whole different direction (Board is undecided about my amended Alterations & Additions request and will discuss at Sept. meeting).

I started this new post for 2 reasons – discussion of this issue on another thread (in which I found interesting), and, the question was raised when another HO was told she need written Board approval to replace the glass in a window (not whole window, only glass for which thermal seal had broken). This has not been previously required – and we have had a lot of glass replaced.

Upon close reading of the language in our Declaration defining ELCEs, I am left with additional questions. IF written approval is required for all ELCEs, then the Board should follow this consistently. If not then this should be clarified by a new policy or set of guidelines (or Rule change) - which I would be willing to work on with a committee.

BTW, I agree the rule is more restrictive than the Declaration. But, which trumps the other given the hierarchy? Is the Rule only more restrictive and is OK legally, or, is the rule inconsistent with that stated in the Declaration, changes the meaning of the Declaration, and is not OK?

Hi Edie – I understand the definition of appurtenant, but am not clear as to your point. Could you clarify? Thanks!

Bonnie

I don't care for the use of restrictive when discussing the rules. I prefer consistent.

But more to the issue at hand, it would appear that your BOD is experiencing some control issues. I don't know enough to know if they are dealing with people pushing the boundaries or bloated head syndrome (when little people get big heads over at the first sign of power).

Personally, I wouldn't want to be involved every time someone replaced the glass in the window. I would state that the replacement needs to be the same type of glass as what was there. (No changing to or from low-e glass for instance.) I would request that they clarify their position.

Of course if they are suffering from bloated heads, then you can fight back. Get everyone you know to submit requests for change. They should be submitting the desire to hand an additional picture on the wall. And to paint a different color on the wall. Heck, for good measure include stuff not really in the mix like putting an alarm clock on the window sill.

Kirk – I agree with being consistent. I agree our Board has some control issues. The Board uses the general language in the Rules to require written permission for all changes/repairs to the exterior of the buildings and ELCEs, including replacing glass. But, they will not develop specific guidelines as to what is and is not acceptable (the one exception is for the replacement of the garage door). They decide on a case by case basis for everything else.

Using your example re glass – the only requirement is that it is either clear view or with grids depending on the original. The type of glass is not specified. But it must now have written approval (prior to this year, written approvals were not needed to replace glass).

I have requested clarification/guidelines be developed back when I was on the Board, but they voted me down.

It would be pretty funny to have a lot of HOs submit written requests for permission to change flooring or paint walls as the Rules do not make any distinctions among the ELCEs.

Thanks for the chuckle!
Bonnie