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Subject: Board Amending Rules
This has probably come up before. The Owners in my HOA took over control of the Board from the Declarant in late 2020. The Declarant was not actively monitoring the community and allowed a lot of modifications that should have gone through an approval process to be added without getting an approval. They even approved a few things that violated the rules.
The new Board just wants to abolish the rules going forward, especially one rule that is currently prohibiting a Board Member from making a modification to his house.
I don't think they are considering the consequences of just abolishing the rule. For example, the rule prohibits signs. Without the rule, an Owner can set up all kinds of signs in his yard - advertising, promotional, "Vote Yes/No for the Casino", etc.
Since these are rules and not in the Declaration, can the Board just make the change without any notice to the Owners? This is in Virginia.
Go back to your documents and see what they say about amendments. Usually these require a certain percentage of homeowners to approve changes. They may also say the board can set up additional rules to flesh out the documents, but not supersede them
You may also need to read all the documents. Usually the declaration established the HOA, the bylaws dictate how the association is run (e.g. when and how to hold special elections) the CCRs dictate how the common areas can be used. The CCRs are usually where you'll see rules about exterior changes to one's home, so be sure you're looking in the right place.
So if this is just a rule, the board may be able to change it, but if the DOCUMENTS say exterior changes must be more approved, it would seem that board has to be changed and likely approved by homeowners. Whatever you find out, take that to the board with your concerns.
Considering how inconsistent the developer was in enforcement, it may be a challenge to convince the board and your neighbors that some oversight may be a good thing, so you'd better think of some ways to streamline the process. Perhaps YOU might volunteer to spearhead a committee that could develop design standards and a review procrss....?
BarbaraR14, yes this comes up a lot. You are on the right track. I do not exactly disagree with what SheliaH posted. Here's my take:
-- A HOA has covenants, as recorded in the Declaration and on public notice with the County Clerk. The courts say covenants are contractual terms, binding each owner to all other owners and the HOA corporation as a whole. The Declaration is the highest in the hierarchy of what is called a "HOA's Governing Documents." The Governing Documents typically are the Declaration, the Articles of Incorporation, the Bylaws and the Rules and Regulations.
-- That there is a hierarchy is important. It means that a Rule and Regulation cannot contradict anything in the Declaration and be enforceable.
-- The Declaration usually states that the Board has the right to create "reasonable rules" required to implement the Declaration's covenants. These "reasonable rules" must have a basis in the Declaration, and the rules must not conflict with what is in the Declaration.
-- "Conflict" is something that many laypeople do not understand until they have seen some examples. I suggest checking in here if you think there's a conflict between a covenant and rule but are not sure.
-- You speak of the Developer approving violations of "the rules." To get intelligent feedback here, I expect you will have to clarify whether the Developer authorized violations of the covenants or authorized something like variations on the rules.
-- Notice is another topic. I would be checking the Virginia HOA yada statute to see if the statute says anything about notice. I would also be checking whether the HOA's governing documents say anything about notice of new rules. Lacking more guidance in Va statutes in the governing documents, the courts expect the Board to be "reasonable and fair."
Declarants/developers are notorious for bending all an association's
doc to make the sale. Typically they had the power so you may well
have to live with them.
Generally, rules that are not part of the Covenants, Conditions and Restrictions (CC&Rs) are used for common areas and amenities. If it is not in the CC&Rs then it would not normally be enforceable on an owner's private property. It's possible they want to eliminate the rules because they are not enforceable.
This is true for the most part for single family home associations. Condos are a different animal and there could be exceptions based on what your CC&Rs say and state law.
To use the OP's example:
The prohibition on signage in the front yard is likely to be a restriction in your Covenants, Conditions & Restrictions (CC&Rs). These CC&Rs are attached to the deed on your home and are part of the contract you signed when you closed on your home. This is why they are legally enforceable.
The board may not amend the CC&Rs without approval from the membership. Approval often requires a super-majority of homeowners to approve (eg. 67% or 75%) and not just a simply majority of over 50%. It is also the board's duty to enforce the terms of the CC&Rs - look in your bylaws to see what it says about the responsibilities of the board.
Rules deal with less "serious" matters - for example, rules of conduct for people using the clubhouse or pool. Approved community colors for exterior of homes may also fall under this category. The board does have the authority to amend these without homeowner approval, although smart board members often ask for feedback from the community before they do so. They also have a duty to enforce the rules along with the CC&Rs.
Some CC&Rs also give individual homeowners the right to enforce the CC&Rs against neighbors who are violating them. I don't think this is universal, so you'll have to read your CC&Rs in detail to see if it is true for your community.
Remember: board members serve at the pleasure of the homeowners and generally can be removed with or without cause at any time (see the bylaws again). Failure to do their jobs properly is certainly grounds for removal - and illegally changing anything in ways to benefit board members and not others is a very good way to get the rest of the community mobilized to remove the bums.
BOD's can make rules as long as they do not Override Covenants and Bylaws.
Our Covenants define type signs allowed and their sizes so a BOD Rules cannot
go out side the Covenants like allow larger signs.
If Covenants do not mention signs, a BOD could have a field day allowing
anything. Also a BOD can override any prior BOD rules.
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