Homeowner votes to change
Hello. I’m struggling to find government document that would clearly defined power of board of directors
we have CCR and our CCR basically has changes in it that board of directors can make their own community rules and regulations that are not CC&R but basically overrides every segment of CC&R. to make my question clear: we have CC&Rs, but we also have Rules and Regulations that have been voted by 2 people (board of directors) that restrict everything that has not been restricted in CC&R and a bunch of other things like homeowners can not use additional parking in the community and that board of directors can restrict having animals. Originally we didn’t have this in CC&R, but board of directors added such restrictions into Rules and Regulations themselves without homeowner vote. also can HOA enforce rules and regulations they came up themselves with or they can only enforce CC&Rs?
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Maria,
Unfortunately, nothing in the statute limits the ability of the association to create rules. The truth is that the only restrictions on private property must be authorized and specified in the CC&Rs. While most CC&Rs establish a general rulemaking or design control authority, that authority is very restricted. Case law from across the entire country has individual State Supreme Courts all ruling consistently on this issue. The associations have the rule-making power to clarify specific declaration restrictions and prevent nuisance activity within these communities. Design control is even more restricted to only general criteria to maintain the community’s character necessary to maintain property value. I drafted legislation this session to codify into law the consistent case law on this subject but have not gotten that legislation sponsored. I’ll try again next session. If you go to the legislative tab on this website and look under the 1st legislative update for this year, you’ll find that proposal.
The Arizona Supreme Court ruled that the association cannot modify its CC&Rs to add a new restriction or materially change an existing restriction in a manner that could not be reasonably foreseen from the original CC&Rs without the unanimous consent of all homeowners. If that is true for a change to the CC&R, then clearly, the association has no authority to add any new restriction via rules or Architectural guidelines not specifically restricted and noticed in the declaration without any approval from the members.
Dennis