We are a question and answer service and do not typically review documents or write documents for customers -- although if you have a particular issue and you can copy and past a particular HOA provision we can take a quick look and let you know our thoughts and suggestions on the matter. That being said, so you want to write up your questions in a response box and I can let you know if the questions or answers would go against the terms of service.
It is very common in HOA's that the board is permitted to take many, many actions without a full vote of the homeowners. In fact, most of the rules and regulations in HOA's are made by the board without a vote of all of the homeowners (sometimes the board is required to solicit input from all of the homeowners if or when they are about to increase fees or enact something controversial, but for the most part the board can do these things without the vote of all owners). That being said, your question is whether the board had the authority to update the HOA rules and regs pursuant to 9.2 ? And if that is the case are the board permitted to take just about any action without a full vote of all owners?
I can tell you straight up that the state HOA and condo laws give the HOA's the power to elect the board and the board can implement any rules and regs that they want to enact -- the only thing they cannot do is enact anything the subject matter of which is illegal under the law (for example, if they enacted a rule that none of the condos could be sold to any minorities -- that would be illegal discrimination and the owners and potential owners can sue in court over something like that). Even if you think that something that the board enacted is unreasonable or tyrannical -- so long as the HOA by laws give them permission to enact such rules, then they can enact such rules. I will take a look at 9.2 and see what else the doc states about the powers of the board to enact rules and regulations and I will let you know what I think.
I did review section 9.2 and as far as the board being able to change the rules and regulations without an owner vote, they are correct. So, anything aesthetic regarding the property (eg, what you can do on your property and have on your property) is fair game for the board without an owner vote. However, you should review section 12.5 which states that any material amendments to any of the documents requires a 2/3 vote of the owners and mortgagees (meaning if you have a mortgage then your lender it the party that votes on the matter and not you). The By-laws are one of the documents establishing and governing this HOA and so there should have been a vote to amend the by-laws. My suggestion is that you question the Board regarding the vote that was taken pursuant to section 12.5 of the by-laws and determine if it was done according to what is set forth in the by-laws.
Please let me know if you have any further questions -- if not can you please press the THIRD, FOURTH or FIFTH smile or star below so that I will be paid for my time. I am paid nothing unless you press the 3rd face or star OR the 4th face or star OR the 5th face or star below. This is not a hobby for me -- it is how I earn a living so I appreciate it when my customers press thecorrect button below so I will be paid for my time. THANK YOU !!
I am sorry -- I thought that YOU said the By-Laws were changed. Now I went back into the documents and see that they were not changed -- and that was what I was hoping that you could hold their feet to the fire on -- because if any of the major HOA docs are amended or changed then there ARE votes required if the changes made to the documents are material in any way (that is what section 12.5 says). Unfortunately, if it was just the rules and regulations that were amended then they are correct that they CAN do it by using section 9.2 -- and unless any of the new rules and regulations are discriminatory or illegal then there is nothing that you can do about it under the law. However, I have actually suggested to owners of homes and condos in these situatiuons and I have helped to organize petition drives among all of the owners in a complex -- if there are new rules and regs that seem insane and onerous and there are many people who are upset about them then you can organize pulling together as many signatures of owners that you can get and if you can get 70 % of the owners to sign onto a petition to get some of the new items in the rules and regulations changed, then the board may listen. Also, there are procedures for petitioning to have the board members removed and you can also pull together a petition drive to have all or some of the board members removed based upon their voting record since they have been on the board. What I suggest here is that you try to determine how many of you are affected poorly by the new rules and regs and pull together in a meeting to decide whether or not you may be able to get the signatures together to either petition against the new rules and regs OR petition to remove the board (or some members). If half the neighbors have received violation then these changes could simply be a disguised method of getting more money out of everyone (and then putting in requirements like the grass must be "green" makes me think that they expect you to pay for pro landscaping and not everyone can afford to do anything like that -- so some of these rules and regs might go over the line if they act to increase the price of owning the unit OR the likelihood that a further fee in the form of a violation fine might be charged by the HOA). So there may be several things at play here with the board and there still may be ways around this -- there is just no slam dunk method that you can use based upon the language of the HOA documents themselves (I wish I could give you one!).
Hmmmm. This is interesting Okay -- how many property owners are there altogether (how many units are owned by private parties like yourself) -- as near as you can guess if you do not know the exact number.
Do you have any idea at all what they are amending in the by-laws?
If you can get me this info I will go back and take another look to see how many they need for the vote and whether or not it makes a difference on what it is in the by-laws they are trying to amend (if they are amending something minor, it may not be an issue -- but a major amendment will most likely need a specific number of approving voters).
These are identified changes to the CBFA Bylaws. The reasons for the suggested changes are noted. Many of the changes specifically relate to the Declarant. This refers to the original developer of our community. There were many exceptions and call-outs that the developer put into the Bylaws so that he would not be subject to them during the build out. These no longer have any relevance and only make the document difficult to read. Most of these are noted for deletion when possible.
Change time frame of Annual Meeting to “during first fiscal quarter” from “35 days prior to the beginning of the fiscal year”. We currently are holding the meeting after the start of the New Year. We think this is a more productive practice as it allows better financial information to be shared.
Section 2.4, iv
This item is specific to the Declarant and is not pertinent any longer
Section 3.1, q
Remove “(except during the Declarant Control Period)”
Section 3.2, d
Remove sentence referring to Declarant Control Period limiting self-management by the Association.
More clearly define the role of the Covenants Committee (previously referred to as the ARC).
Section 7.1, biii
Delete section pertaining to VFD contribution. Previously amended but not removed.
Section 7.1, e
Deleted section pertaining to initial budget and assessment
Section 7.1, gi
Deleted sentence about pro-rata distributions to the Declarant
Section 7.1, gii
Deleted sentence about Decalrant’s obligations to any shortfall.
Section 7.1, hi
Deleted sentence about pro-rata reserve distributions to the Declarant
Section 7.1, hii
Deleted sentence about Decalrant’s reserve obligations to any shortfall.
Section 7.1, j
Deleted section that refers to lots owned by the Declarant
Removed statement “as when acquired”. This related to new purchases and doesn’t take into consideration that some lots are conveyed in poor condition.
Add definition as to acceptable repair and replacements vs. alteration. Remove sentence about Board determining payment vouchers.
Changed from 40% to 20% the amount requiring majority vote
Add sentence identifying the ACR form to be sent for approval. Remove sentences pertaining to the Declarant
Section 8.6, b1
Change time frame for work completion to 30 days from six months.
Section 8.6, b2
Add 45 day time frame for response on change requests to approved projects.
Section 9.1, a
Removed sentences pertaining to the Declarant
Section 9.1, fii
Removed Lots owned by the association and Declarant
Section 9.1, h
Removed references to vehicle parking and maintenance on common areas. Condensed sections about RV’s parking for 72 hours.
Section 9.1, i
Removed sentences about Board having any registration activities for pets
Section 9.1, j
Changed to allow common signs with limitations. Removed Declarant exception
Section 9.1, m
Removed definitions of annoyance or nuisance
Section 9.1, o
Separated into O,P,Q,R,S for clarity. Removed shed and accessory buildings from P
Section 9.1, t
Changed wording to permit 1 meter antennas mounted to the rear section of roof
Section 9.1, u
Removed Declarant installed fences.
Removed section exempting Declarant from any Rules and Regulations
Hello again --
Please bear with me and I will review this against the docs in the AM or early afternoon and get back to you with some answers and/or suggestions. However, because we are talking about a second issue and review again I will have to ask you to accept the answer again after I post it so I will be paid for the additional time / question review and suggestions / answers.
Hello Chris --
I apologize for the delay. I needed a small block of time that I could sit down and really look at this for you to see what they are doing here (what they have done really). Obviously, I have only looked in depth at the regulations (previously) and now the By-Laws but I do suggest that you sit down and really read everything to do with this association -- start with the Articles of Incorporation and Declaration and work your way through the rest.
From what you told me it seems that they have already amended the By-Laws so I am not quite sure how you feel about challenging them on some of these things but this is what I found out as I first reviewed the voting requirements to amend and then the changes that you noted above to the by-laws, I actually went into the current by-laws to see how each change amended the by-law and whether that amendment can be considered a "material" amendment in the grand scheme of things or were the changes really all just "de minimus" (tiny) changes to clear up the document.
First, on the voting requirements. In the By-Laws themselves there are two sections which speak to changing the documents. Section 12.5 speaks to changes being made to any of the association documents when a mortgagees (lenders) are part of the consideration of the Officers votes. Section 12.5 sets out specific items that are not to be amended in the documents without the approval of the mortgagees - but it is confusing because any changes made to any of the documents, according to Section 12.5, must be made with a majority approval of all lenders on the property (that means any owner who has a mortgage -- except that with the lenders, the Officers are only required to send notice of the changes and if there is no response from the lender then the changes are deemed to be approved) AND, in addition to a majority of the lenders, this section also requires that 67% of all owners must approve material changes to the documents for the certain specific things that the lenders may be concerned about -- such as (a) changing the manner of assessments, (b) changing lot sizes, (c) insurance changes, (d) maintenance responsibilities, (d) reserves and maintenance amounts for common areas. So, presumably if the By-Laws are to be amended in a manner that affects any of these things, then a 2/3 vote of owners must be received. However, we then turn to Section 14.1 which specifically permits any amendments to the By-Laws by a majority vote of (a) all owners, or (b) if a notice of the amendments to the by-laws is inserted into the meeting notice, then a majority of the owners who appear at the meeting where the amendments to the by-laws will be discussed. I am assuming that they inserted a notice of the amendments to the by-laws in the meeting notice and that is where the summary that you wrote above came from?? If that is the case, then if they had a meeting and only 24 owners voted YES to amend the By-Laws, then that 24 must have been a majority of the owners who actually appeared at the meeting. It really was somewhat "cute" how they pushed through these amendments if that is the way they did it --- because you have 2 methods and requirements set forth in the By-Laws as the manner in which the voting and amendments may happen here. First, I believe that they may have squeeked by not having to comply with the 67% of owners vote as required by Section 12.5 because from what you were able to share with me above and when I took those amendments and looked at each section of the by-laws that was being amended by those provisions above, it did not seem to be that these amendments triggered the interest of the mortgagees (there was nothing raising assesments or changing boundary lines or reserve amounts, etc -- that is, nothing that I could tell for certain because what you gave me above in many places were not the exact amendments that were used -- they were summaries and paraphrases of what the Officers were proposing to change in the by-laws -- but almost none of what you gave me above sets out the EXACT wording of the by-law amendment itself. So, with the reservation that what I reviewed above were summaries of the amendments, I believe that Section 12.5 was not triggered because the amendments made were not the type that the lenders would care about -- and that means that a 2/3 vote of the owners was not required to pass the amendment at the meeting.
Which then turns us to Section 14.1 of the by-laws and so long as they inserted a NOTICE that they intended to amend the By-Laws at XYZ meeting on XXX date and distributed it to all owners, then the only owners that needed to vote were the ones that appeared at the meeting and the Officers/Board just needed a simple majority at that point. SO, again -- if 24 was the majority of the owners at that meeting, then they were able to amend the By-Laws pursuant to the terms of the By-Laws.
I think that an objection or objections to the procedure to amend the By-Laws and the actual amendments to the By-Laws can be made due to the manner in which the Board summarized and paraphrased these amendments in the Notice of the meeting -- My first objection is to the language used to summarize the amendments which were on the table at the next meeting. Now, I am assuming that what you wrote out above is from such a notice -- and the Preface is written so that whomever would read it would think that the ONLY thing that is being amended in this By-Law amendment are a few tiny, small, otherwise "de minimus" changes in order to remove the Declarant from the By-Laws (the Declarant was the developer/builder and they had control of the Board while the units were being built and sold and as the units are sold and the numbers of owners increases, the role of the Declarant becomes smaller and then ends and at that point the management and control of the Board is turned over completely to the owners). In your association, the Declarant is gone and so the manner in which your Board worded the Preface sounds like they are just amending the By-Laws to remove the Declarant and clean up a number of spots where the Declarant is referenced. BUT -- these amendments, while removing references to the Declarant in many spots and through a number of the listed amendments, there are many amendments being made here that are NOT "de minimus" in the true spirit of being tiny and inconsequential. That is really the major problem that I have with the way these amendments were advertised (for lack of a better term) -- I believe it was misleading. The Board put a notice of the amendments and used summaries in a meeting notice that was distributed to ALL owners and then the final changes made and presented at the meeting were a lot more significant in many places in the by-laws than tiny changes to remove the Declarant as the Preface of the notice tried to claim.
And I did review the summaries above and placed them into their appropriate sections in the by-laws that each was amending and I do agree that a number of the changes were to remove the Declarant -- however, I specifically note the following changes to certain sections of the By-Laws which are not de minimus and do not have anything to do with the Declarant and his ending of involvement with the association, as follows:
(A) Section 5.1 -- The notice above states that they will more clearly define the role of the Covenants Committee -- this has nothing to do with the Declarant and the Purpose, Power and Authority of the Covenants Committee is clearly defined in Section 5.1 already -- so what did the Board change in the final amendment that no one saw until the meeting?
(B) Section 8.4 - The notice states that they are going to add a definition as to acceptable repair and replacements Vs alterations. This section has to do with replacing damaged portions of the property with similar materials to the original construction. -- Again, because this is so sketchy, no one outside of those who attended the meeting to accept the amendments to the By-laws would learn this until after it is voted on at the meeting and adopted.
(C) Section 8.6, B 1 -- you had 6 months to complete repairs and renovations and with this amendment you now have 30 days (that is not a small change affecting only the Declarant language in the document, and I actually believe this is a change that will have a LOT of impact going forward)
(D) Section 8.6, B2 - If you want to change the plans for your renovation you must now submit a change request to the board and they then have 45 days to approve or deny the change request (again, this has nothing to do with the Declarant and this will also have a large impact going forward).
(E) Section 9.1h -- The explanation in the notice as you set out above stated "removed references to vehicle parking and maintenance on common areas. Condensed section on RVs parking to 72 hours" -- First, nothing to do with the Declarant here and then there is no explanation of what they intended to put into the By-Laws (this section in the by-laws is large -- 3 paragraphs - and this little summary they gave is much to small) so the only people privileged with this information are the few who showed up for the meeting and voted on the adoption of the amendments
(F) Section 9.1m - The notice said they will remove the definitions of annoyance and nuisance but does not tell anyone what they are being changed to, if anything.
So, I hope you can see my point here and where I am going with this and if not, please ask me questions. My point is this -- they deliberately mislead ALL owners by making them think that the upcoming owners meeting is just to vote in a simple amendment to remove the Declarant from the By-Laws. My bet is that a number of owners did not show because the notice was so misleading as to make them think that it really was no big deal and then even if they went to the meeting my bet is that when presented with the actual amendments made to the By-Laws they voted for it because they had already been led to believe that it was a simple amendment to remove references to the Declarant.
Now you want to know how you can use all of this against the Board to get them to stop harassing people? These matters above are really something that would either have to be addressed by adopted additional amendments to the By-Laws that are agreeable to more owners before they are put on the table for a vote (you could accomplish this by getting as many owners as you can to sign a petition to change the by-laws again and either return them to their pre-amendment state or review what was done and make changes that are more for the benefit of a few owners. You and a group of owners could also take the matter to court if the Board refuses to budge on this matter even after it is pointed out to them regarding how deceptive this entire process was and you have a petition signed by as many owners as you can get to sign the petition. As part of the petition drive you can also attempt to recall the Board of Directors and have new ones appointed if you read the Articles of Incorporation and there is a process set out in that document regarding how to go about the replacement of the board and then the board will appoint new officers.
As I said earlier, your best bet is to read all of the formation documents and get informed regarding how to recall the Board and how to protest certain actions that they take. I wish there was some way I could give you that magic bullet that you could use to fix these situations, but it doesn't exist here right now and the only way to approach this is to read everything and keep their feet to the fire on the actions that they take - and see if you can get a group of owners that will work with you on these matters. I do believe that the manner in which they sent out the notice to all owners of a change to the by-laws and a vote at the next meeting was deceptive because of the manner in which they summarized many things and prefaced it all with a note that made everyone believe the upcoming amendments were simple and geared just towards removing the Declarant from a few spots -- all deceptive.
I hope that helps to understand a bit better what they did and why but please ask any additional questions that you would like. I would appreciate it if you can rate this second answer below and it will help to defray some of the time I spent reviewing the amendment notice and summaries to the actual by-laws to determine what was happening and what your Board did in this situation. I am also really not supposed to review docs like that and give such lengthy assessments but I had started this with you and I am bound to finish it.
Please let me know if you have any further questions -- if not canyou please press the THIRD, FOURTH or FIFTH smile or star below so that I will be paid for my time. I am paid nothing unless you press the 3rd face or star OR the 4th face or star OR the 5th face or star below. This is not a hobby for me -- it is how I earn a living so I appreciate it when my customers press thecorrect button below so I will be paid for my time. THANK YOU !!
Hello again Chris --
Unfortunately, they CAN poke around your backyard with their clipboards and their nonsense opinions because the By-laws give them that right (and that's in the original By-laws -- it has nothing to do with the amendments) as follows:
"Section 13.1. Relief : Each Owner shall be governed by, and shall comply with, all of the terms of the Association Documents as any of the same may be amended from time to time. A default by an Owner shall entitle the Association, acting through its Board of Directors or through the managing agent, to the following relief: ........
(e) Abating and Enjoining Violations by Owners. The violation of any of the Rules and Regulations adopted by the Board of Directors or the breach of any provision of the Association Documents shall give the Board of Directors the right, in addition to any other rights set forth in the Association Documents:
(i) to enter the Lot on which, or as to which, such violation or breach exists and summarily to abate and remove, at the expense of the defaulting Owner, any structure, thing or condition that may exist therein contrary to the intent and meaning of the provisions of the Association Documents, and the Board of Directors shall not thereby be deemed guilty in any manner of trespass;
(ii) to use self-help to remove or cure any violation of the Association Documents on the Common Area or on any Lot (including without limitation the towing of vehicles); or
(iii) to enjoin, abate or remedy by appropriate legal proceedings, either at law or in equity, the continuance of any such breach; provided, however, that before any construction may be altered or demolished (except in emergencies) judicial proceedings shall be instituted."
The minute I reviewed the additional question that you had above I realized that I saw that provision in the existing By-Laws. So, there never really was much of anything that you could do to stop them from walking through your yard with their clipboard.
Regarding your next issue -- the time for projects to be completed -- that IS one of the items changed with the latest round of revisions and in Section 8.6, B 1 -- you had 6 months to complete repairs and renovations and with this amendment you now have 30 days to do so -- and from what you are telling me, this is the item that is having the biggest impact on you right now. However, because those amendments to the By-laws were recently pushed through in the very sneaky manner (which I believe was deceptive -- as you said yourself, you thought they were just clean up amendments to remove the Declarant. In order to get some relief from this you could try a few different things: (a) Ask for an extension - claim that your ongoing projects should have been grandfathered under the old 6 month rule and see if they will permit you a bit of relief from the 30 Day requirement (there is nothing in the condo / HOA laws in VA that states that the Board / Officers must grandfather those owners who had things happening under the prior by-laws so you will be basically at their mercy but it is still worth a try to ask them yourself; or (b) you could pull a petition together of any owners that are in the same situation as you are in and see if that might sway them -- there is usually strength in numbers and the Board/Officers may get a bit nervous if there are a bunch of you claiming that what they did was deceptive and you threaten to complain to the Attorney General's office about the manner in which they slid these amendments by everyone (the AG's offices in every state actually accepts complaints against HOA's and condo associations -- typically the AG's office will not do anything on one complaint, but if they get enough of them that is when the AG's investigators may take action -- you can find the AG's office for consumer complaints on line and there is most likely a complaint form from them that you can download and use - if not, they will usually mail you one if you request it or you can simply write a letter of complaint to them); or (c) if you can get enough owners together who are not happy about these recent changes then you may be able to force them to go back and re-think some of the enforcement of these rules; or (d) if it gets really ugly, particularly if they assess any fines against you, you can hire an attorney in your local area and bring the matter to court (if they fine you and you do not pay they may put a lien on your house and take the matter to court against you first to enforce the lien in which case you can countersue them for unfair and deceptive practices (because of the manner that they put these amendments into place) OR you could initiate a lawsuit yourself against them and your grounds here would be that the manner in which they squirmed these amendments through the ownership was deceptive (by making it appear that it was all just small, inconsequential amendments to remove the Declarant and references to the Declarant) and you can claim that even if the amendments were proper that anyone who had ongoing items that would be affected by the amendments should have had their situations grandfathered so they could continue operating under the original By-Laws. However, hiring an attorney locally can be expensive (up to $300 per hour for a specialist in condo and HOA law) -- but if things do start to get ugly you might consider hiring someone locally to at least write the Board / Officers a letter stating that you will sue over these matters if you are not permitted at least the consideration of the grandfathering for your renovations and if the Board and Officers realize that you are serious, they might back off because they may not want to pay their lawyer or hire a lawyer to handle your issues and the issues of any other owners who are affected by this and believe that what they did and how they did it to amend the By-laws was deceptive.
Wow -- yes, you are correct that this is a bit lengthy, but to be honest with you, if you signed up for the subscription plan, the site charges a chunk of money up front and then bills you monthly for the service and that will happen until you call to put a stop to it. But, if you do that then the website will put your question on the board offering a smaller amount to the attorney who picks it up and you probably would not be able to find an attorney here who would pick up your question and actually go to the HOA documents and go through this lengthy review and analysis for you (all of the questions are placed on a master list and attorneys can choose whether or not they want to pick the question up -- and if it is a complicated situation and analysis for what they think is small money they may not pick it up - and if you remember what I said way back in the beginning that I am not supposed to review and comment on documents like this -- because we have to be careful that we keep our answers as suggestions for educational purposes and we are not actually practicing law on the website - so we will review a provision or a section if you copy and paste it into a response box (like I pasted Section 13 above) and ask me to review it against specific questions you might have -- so I have crossed the line a bit more than I should here for you but I was intrigued by your questions and I really do not like HOA's and condo associations and their endless rules driving people crazy). So there really are all kinds of considerations when you are deciding whether or not to sign up for a subscription plan or just pay for a few questions on a singular basis. The subscription plans are great if you have a few quick questions on a variety of issues (you can use legal, medical, veterinary -- any category is fair game). For anything in depth like this the attorneys will usually tell you that you must hire a local attorney to review the documents and give you these assessments. Overall, if they are going to act like tyrannical despots who are on power trips running around your backyard and it doesn't seem to be letting up at all, then you may want to consider moving away from that particular HOA -- but if you ever consider buying a house or a condo again you should make sure that you get copies of the documents that are the operative documents for that HOA or condo -- the Declaration, the Articles of Organization, the By-Laws and the Rules & Regulations are all important documents and they might not all be recorded either (you will always see the Declaration recorded and sometimes the Articles of Organization -- but the By-Laws and the Rules & Regs are typically not of record with the public property records so you and your realtor should hunt down these documents from the seller of the unit (whether a house, townhouse or a condo) to read and review them before you decide to purchase in that complex or association.
I think the following statements of the Article of Incorporation mean that the Bylaws are not... valid? Is this correct?
Section 2.2. Construction of Association Documents
(a) Captions. The captions are inserted only as a matter of convenience and for reference, and in no way define, limit or describe the scope of the document in which used or any provision thereof.
(b) Pronouns. The use of the masculine gender shall be deemed to include the feminine and neuter gender and the use of the singular shall be deemed to include the plural and vice versa, whenever the context so requires.
(c) Severability. Each provision of an Association Document is severable from every other provision, and the invalidity of any one or more provisions shall not change the meaning of or otherwise affect any other provision.
(d) Incorporation and Interpretation. Any provision of any Association Document referenced in any other Association Document with the intent to incorporate the provisions of one Association Document into the other Association Document shall be deemed incorporated therein, as if set forth in full. To the extent that any requirement as to the content of one Association Document may be cured by reference to any other Association Document, then such requirement shall be deemed satisfied. If there is any conflict between the Association Documents, the Declaration shall control, except as to matters of compliance with the Act, then the Articles of Incorporation shall control. Particular provisions shall control general provisions, except that a construction consistent with the Act shall in all cases control over any construction inconsistent therewith. The provisions of the Bylaws shall control over the provisions of any rule, regulation or other resolution adopted pursuant to any of the Association Documents.
These Articles may be amended in accordance with the procedures outlined in the Act; provided, however, that these Articles may not be amended without at least a Sixty-seven Percent Vote of the Owners. No amendment to these Articles may diminish or impair the rights of the Declarant without the prior written consent of the Declarant.
Is she correct, and if so, that means any of the contradiction of the 67% vote, such as it is in the Bylaws, is preceded by the Articles, and thus, the Bylaws cannot be changed... *I hope*. :)
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