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badgerme123, Lawyer
Category: Real Estate Law
Satisfied Customers: 57
Experience:  18 years legal experience with much of it focussing on real estate law.
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My new South Carolina HOA has this in the CC&R's:

Customer Question

My new South Carolina HOA has this in the CC&R's:
4.18 Each Unit Owner shall provide garbage receptacles or similar facilities in accordance with reasonable standards established by the Declarant, or a roll-out garbage rack of the type approved by the Declarant, which shall be visible from the streets on garbage pickup days only.
The city provides us with two large rolling containers, one for trash, one for recycling. After I objected to a number of houses leaving their containers visible, I was told by the management company:
"The board has made the decision that any trash cans that have plantings around them will be allowed because the plants grow up."
So now these containers are still fully visible but behind small plants and even potted plants that will never grow up to hide them. How should I explain to the Board, all neophytes, their obligation to enforce the restriction as written, that they do not have the authority to add or subtract from the CC&R's?
South Carolina law imposes a duty of loyalty to the non-profit corporation that is our HOA, whose interests are expressed in its governing documents. That's about all I can find. I think also that their action risks a suit (and maybe by me) to enforce the restriction, and personal liability for the breach of their duty of loyalty. But I want a lawyer to explain this and whatever else they should know.
Submitted: 2 years ago.
Category: Real Estate Law
Expert:  badgerme123 replied 2 years ago.
Hi. My name is***** an attorney and I'd be happy to help you. First, your analysis and instincts are correct in my opinion. Given the facts you describe, the Board should be enforcing the restriction as currently written. I would however, suggest that you approach the legality of the issue a bit differently. What the board has done, according to your statements, is to unlawfully amend section 4.18. There are most certainly rules in the CC&Rs that address the procedure for amending existing rules and these should be easy to locate and provided to you upon request. Then I would proceed on two fronts, one their lack of enforcement and two, the procedural violation of improperly amending a rule. Put your arguments/concerns in writing. Send it to the Board as well as the management company, and ask that it be listed as an agenda item at the next association meeting. I would also ask for the name of the attorney/firm that represents the HOA and send him/her a copy as well. That will certainly get the ball rolling and hopefully the outcome you desire.
I hope that helps.
Sande Shamash