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Roger
Roger, Lawyer
Category: Real Estate Law
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Our Declaration includes the following statement regarding

Resolved Question:

Our Declaration includes the following statement regarding Architectural Standards: "The NCC {New Construction Committee} shall adopt such Design Guidelines at its initial organizational meeting and thereafter shall have sole and full authority to amend them."

In our "Design Guidelines" document, there is the following statement: "This manual may be revised and/or amended by the Board of Directors from time to time." It also states a few pages later: "In all cases, the Board of Directors of the Association shall have the right to make the final decision on any applications that have been denied approval by the NCC (New Construction Committee)."

Are the statements in these two documents incompatible with one another?

If they are incompatible, are the statements in the Design Guidelines considered null and void because the Declaration "supercedes" the Design Guidelines?
Submitted: 5 years ago.
Category: Real Estate Law
Expert:  Roger replied 5 years ago.

Hi - my name is XXXXX XXXXX I'm a Real Estate litigation attorney here to assist you.

 

The last two statements are compatible with one another. However, I think the first one does clash with the others.

 

The part that says "sole and full authority to amend them" cuts against what the other provisions say about the Board of Directors. I think you should try to re-word the statement to provide that the NCC shall propose design guidelines to be approved by the Board of Directors, and that any suggested amendments shall be approved or disapproved by the Board of Directors.

Customer: replied 5 years ago.

I wish I could re-word them. :-)

 

As the documents stand right now with the above wording, would a court decide that the Board of Directors do not have the authority to be the final say regarding the review of someone's houseplans since the latter two statements are contained in the Design Guidelines and the the first statement is contained in the Covenants?

 

How could the BOD have any oversight of this committee if they have no authority regarding this committee?

 

Thanks,

Shea

Expert:  Roger replied 5 years ago.
I think a court would recognize the inconsistency of the statements and direct the association to amend the provisions to work together and not contradict, and let the association vote on the new provision.
Customer: replied 5 years ago.

But if the way that the ACB is implementing the guidelines is contrary with FS 720, would a court be likely to rule that the BOD does or does not have the authority to step in and stop that particular behavior, even if all they do is approve a set of plans that the ACB has wrongly [according to the statutes] denied?

 

Also, if the architectural guidelines were written before FS 720, is the ACB still required to allow the homeowner the choice of materials as is required by 720? And, can the ACB require certain design elements that are not specifically stated in the guidelines, or does the fact that the guidelines were written before 720 give the ACB an "out" to not abide by them and afford the homeowners the rights that were provided for in 720.

Expert:  Roger replied 5 years ago.
Let me check on this and I'll respond.
Customer: replied 5 years ago.
The e-mail prompted me to accept answer but their is no answer to this question yet.
Expert:  Roger replied 5 years ago.

If the rule is in violation of any state statute, it would automatically be void as a matter of law.

 

Self-made rules must comply with any statutory or common law mandate. Thus, the provision should be automatically void.

 

Also, if the provision was made before the law went into effect, it would have to be changed to comply with the law.

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