This article is presented in six parts:
Part One – Covenant Violations
Part Two – “I want to opt out of the HOA”
Part Three – How are violations determined?
Part Four – How are managers trained to find violations?
Part Five – Hearing Letters
Part Six – “Nothing like that would happen in our community even if we did not have the HOA”
The author, who has sent out his share of warning letters regarding covenant violations, has dealt with all the emotions on the spectrum from those on the receiving end of those warning letters. From anger to crying to total indifference, and everything in between, this author has felt it all. On one occasion, the author was told that receiving the covenant violation letter was the ‘absolute worst thing that had ever happened to them in their entire life.’ This may even be more difficult to believe because these remarks were made by an adult well over the age of eighteen. The author knows an association manager who was told by one recipient of a violation letter that she had a miscarriage because of the warning letter received.
This is not to make light of covenant enforcement, the process, or most definitely not the recipient of the letter. This is to let everyone know, the author has never encountered an association manager that looks forward to sending out warning letters. Not one. The author, however, has had recipients thank him for letting them know something was amiss with their property and the covenants. These people, like many covenant violators, are often times unaware of the particular covenant they violated.
The basis for violations is the HOA’s declarations of covenants, conditions, and restrictions (CC&Rs). The covenants, conditions & restrictions can also be known as the CC&Rs, master deed, declarations, or just the covenants. There may also be other names these documents are referred to as well. As a side note, it is not uncommon to hear the term “bylaws,” used interchangeably with CC&Rs. This is incorrect. The bylaws are the rules for how the HOA is to be operated. For example, the bylaws would specify when the annual meeting is to be held, or how many directors serve on the board of directors. The bylaws, while they could be attached as an appendix to the CC&Rs and cover some of the same topics, they are two different documents.
The other association governing document that is used for covenant enforcement, are the “rules and regulations.” The rules and regulations are established by the authority of the CC&Rs. In the CC&Rs, there is typically a provision that will be similar to the following example:
“Section Three: Rules and Regulations – The Board of Directors of the Association shall have the power and authority to develop, publish, and enforce reasonable rules and regulations concerning the utilization and wellbeing of the Lots and the Common Areas of the Association. Such rules and regulations may provide for the imposition of fines and/or other penalties for the violation thereof, or the violation of any of the covenants and conditions contained in this Declaration. The Board of Directors can add, alter, or remove provisions of the rules and regulations at their sole discretion with thirty (30) days’ printed notice to the membership of such changes.”
As noted in the example above: “The Board of Directors of the Association shall have the power and authority to develop, publish, and enforce reasonable rules and regulations…” The word “reasonable” needs elaboration. The provision is allowing the board of directors the ability to enact “reasonable” rules and regulations. With this authority, the board of directors has the responsibility to only enact rules and regulations that are reasonably related to the advancement of the overall wellbeing of the HOA members that are in line with the CC&Rs.
The main issue with the use of the word “reasonable” is that it is subjective and can be up to varying degrees of interpretation. Anticipating with certainty what a judge may deem as “reasonable” can be problematic, if not impossible. With that being said, boards of directors practicing forethought and good judgment can lessen the likelihood of a rule being deemed “unreasonable” by a judge.
An actual example of how “reasonable” was turned upside down with a rules and regulations interpretation of the trash receptacles rule. “Trash containers cannot be placed at the curb until after dark the day before trash pickup. Trash containers must be removed from the curb and removed from the view of the street by dark on the day of trash pickup.” This rule was deemed “unreasonable” because not everyone got home from work before dark. A secondary point was that sunset was not a static time each day. This rule was revised with: “No trash container can be placed at the street the day before trash pickup earlier than 7:00 PM. Trash containers must be removed from street view by 9:00 AM the next day following trash pickup.”
Rules that quickly run into the “reasonable” or “unreasonable” test category typically arise when a board attempts to add a rule that could affect the property rights of the members. A good example of this would be a board implementing a rule restricting commercial vehicles within the association when commercial vehicles are not addressed in the CC&Rs. Even when the CC&Rs address commercial vehicles, enforcement can still be difficult if the CC&Rs provision is not specific or clear enough.
With all this being said, the association’s lawyer who is experienced in homeowner association law should review the rules and regulations and any revisions thereafter. Unfortunately, many times the association’s attorney will review and still report back something along the lines, ‘There are still no guarantees with how a judge would rule on this.’ Regrettably, this is how our legal system works with very few certainties.
The HOA’s developer board of directors or in some instances, the first membership-controlled board of directors will compile and implement the HOA’s rules and regulations. This is typically accomplished with the oversight of the HOA’s attorney. Some association’s declarations may have a very simple process for developing or changing rules and regulations, whereas some association governing documents may have very elaborate processes or require a vote of the membership to revise the rules and regulations. In the example above, all that was required was thirty days’ notice and publication to the membership. The author has seen rules and regulations that fit on one sheet of paper, and some that have been more than a hundred pages. The difference in complexity of rules and regulations reiterates the point that no two associations are the same.
The purpose of the rules and regulations is to help clarify and reasonably expand upon the governance policies within an HOA. They should help clarify provisions in the CC&Rs, and reasonably expand on those provisions. For example, the CC&Rs may say the “association’s amenities are for the exclusive use of the membership and their guests.” The rules and regulations would reasonably expand on this by stating, “Members are limited to three guests at one time while using the pool amenity.” The reasonable expansion of the CC&Rs wording here would prevent one member from bringing thirty guests to the pool, thus preventing other members from using the pool.
A common question is why do the CC&Rs need to be expanded on or clarified. The reasoning being that the drafter of the original CC&Rs cannot anticipate every eventuality or possible need of a not yet constructed HOA community. To illustrate this point, the CC&Rs have language such as “trash receptacles must be placed out and be returned to the rear of the member’s dwelling after pickup in a reasonable time.” The rules and regulations could then have wording such as “trash receptacles can be placed at the curb no sooner than 24 hours before pickup and must be returned to behind your home no later than 24 hours after pickup.”
The rules and regulations should provide for consistent and reasonable enforcement guidelines. The HOA board of directors does have some discretion when adopting rules and regulations, as long as the rules and regulations do not conflict with the CC&Rs or violate the law and can be deemed reasonable within the context of the original CC&Rs.
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-Disclaimer: Since every state has different statutes or no statutes at all regarding HOAs, and every association’s declaration of covenants, conditions, and restrictions (CC&Rs) are different, any information provided within this blog is for non-legal and entertainment purposes only. For legal advice please consult an attorney who specializes in community association law.