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BOD using “Resolutions” to issue rules

Most homeowners look at the CC&Rs and the Bylaws of their HOA, thinking these are the governing Docs… Our BOD has been using “Resolutions” to change or bypass or just establish control outside those traditional documents… is this legal?

3 Responses

  1. dennisl

    Susan,

    There is a hierarchy to the documents that govern all Common Interest Communities. They are state law contained in ARS Title 33 chapters 9 (for condominiums) or 16 (for planned communities (HOA)), then the community Declaration (CC&R’s) , then the Articles of Incorporation, then the Bylaws and finally the Rules or policies.

    No provision contained in a lower document can contradict or conflict with any provision in a higher document. Only the CC&R’s are recorded and thereby only that document can restrict or limit the use of the individually owned property. In general the CC&R’s give very wide latitude for the association to create rules over the use of common property or to protect the use of the common property for the enjoyment of the community members.

    For example you cannot create a rule that conflicts with any provision of the Bylaws, without first changing the bylaws. You also cannot implement a bylaw change that conflicts or expands on a restriction cited in the CC&R’s. You also cannot create a rule or bylaw change that would add a restriction on the use or behaviors within any private property not authorized in the CC&R’s without first modifying the CC&R’s. One issue commonly missed is you cannot change the bylaws in any way that would conflict with the Articles of Incorporation.

    Far too often associations try and create additional rules to control the behavior of homeowners in their homes, or to restrict the use of private property. Unless those provisions have legitimate purpose to protect the ability of the community to enjoy the common property or are not specifically authorized in the CC&R’s they are inappropriate and illegal.

    Hopefully this helps.

    Dennis

  2. KEnt

    So in my community the original CC&R filed in 1997 stated no ‘overnight parking’ on streets. In 2010 the board signed a resolution that no vehicles allowed on the street between the hours of 2 and 5 am. This was their attempt to create an easy way to monitor/prevent overnight parking. Nothing was ever filed with the state and monetary fees are attached to violations. Our streets are city owned/maintained property, further within our community is a public school and city park maintained/owned by the city. The HOA cannot restrict the use of the park or school yet homeowners living on the same street are not allowed to park on the street at certain hours while those outside of the community are permitted as they are not bound by the HOA.
    Would the fact the rule was changed to be much more restrictive and not filed make it unenforceable?
    Would the fact the board created this new rule or enhancement of the original rule not a majority of the homeowners make this new rule unenforceable?
    Would the fact the rule gives preferential treatment to those outside of the community make the rule unenforceable?

    1. dennisl

      Kent,
      Your association created a rule that is actually less restrictive than the provision of the CC&R’s to help clarify how they would enforce this provision. This is totally appropriate and legal and does not require a change to the CC&R’s as this is within their reasonable discretion in enforcing that provision of the CC&R’s. Their rule is totally enforceable for all community members, however it would be impossible to enforce unless they know the license plate number of every car of every homeowner in their community. If they attempt to fine a homeowner simply because a car unrelated to that home is parked on a public street based on the public facilities within the community they would have a very difficult time enforcing that rule and any associated fine in court. If anyone is fined for a car parked on the streets that does not belong to the family or their guest I would surely recommend challenging that fine in court.

      They could also have created a rule that they will not enforce that provision of the CC&R’s at this time without losing their ability to enforce it again at a later date if problems are created. While it has always been my position that associations should never have the right to enforce restriction on the use of public streets, Arizona law allows those provisions to stand as long as the CC&R’s are not changed for any reason after December 2014. If the CC&R’s are amended and recorded for any reason they lose that right to regulate the public streets in their community irrespective of the provisions in their CC&Rs.

      Dennis

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