Has your association ever called an annual homeowner meeting only to find that not enough homeowners were in attendance to hold the meeting, approve prior meeting minutes, and elect a Board of Directors? Quorum is the minimum number of participants necessary to take action at a meeting. This article discusses some of common reasons associations may want to consider amending their governing documents in the new year. Over time the association’s Board of Directors may find that their governing documents do not comply with changes in law, no longer suit the needs of community, and/or that updates are needed to address current trends and current operational challenges. ![]() In addition, as communities age so do their governing documents. Those documents commonly contain provisions related to the development of the neighborhood and developer rights that no longer apply to a fully built-out community. The association’s initial set of governing documents are prepared by the developer’s attorney. These documents are collectively commonly referred to as the association’s “governing documents.”Īmong other things, the governing documents establish corporate operational requirements, set forth the purposes of the association, outline maintenance and insurance obligations of the homeowners and association, and regulate property uses and architectural issues within the community. Ever.In addition to state law such as the Colorado Common Interest Ownership Act (CCIOA) and the Colorado Revised Nonprofit Corporation Act (CRNCA), homeowner associations in Colorado are primarily governed by the association’s Articles of Incorporation, Bylaws, Declaration of Covenants, Plat Map, Design Guidelines, and Rules and Regulations. When I asked a board member why he did not read the covenants that he was purportedly enforcing, he said that he could not read all that “legal mumbo jumbo” but he knew what was “good for the community.” Let me make clear one point: Violating the covenants and exposing the association to liability is not good for the community. This is not a good reason for a board-created rule. What was the reason for this type of mailbox? The hockey player husband of a board member liked it and bought it for their own property. Although the board had the authority to approve mailboxes, it did not have the authority to require only one type of mailbox, and one that was inconsistent with the general scheme of development. As to the mailbox rule (no pun intended, for the lawyers out there), our community originally had many different types of mailboxes. The board violated the covenants when it created a rule allowing them. What about these rules? Our community’s covenants expressly prohibited these kinds of basketball hoops. A decade ago, our then-existing board created a rule allowing free-standing basketball hoops and another requiring a green Victorian mailbox to go with our Spanish style architecture. I will use my own community as an example of what a board should NOT do. Finally, rules and regulations must be reasonable, not arbitrary or capricious and have some objective basis. Legally, this means the can be more readily challenged. Florida courts have held that board-created rules and regulations do not carry the same presumption of validity as covenants. They certainly must be consistent with the Declaration and the scheme of development of the community. The authority for a Board to create rules and regulations (on any specific matter) must be either expressly authorized by the Declaration or reasonably inferred from it. Rarely, rules and regulations are attached as exhibits to a Declaration, in which case they are incorporated into the Declaration, drafted by the original developer. Rules and regulations are usually board-created and can be amended by the board, without input from the association members. ![]() They are distinct from rules and regulations. I will use Declaration interchangeably with covenants here. Co-ops are a bit different, but generally have co-op documents which include covenants as well. In both condos and HOAs, the Declaration includes covenants drafted by the original owner of all the lots (parcels or units). Under Florida law, covenants must be recorded. Florida (and most other states) courts have held that covenants carry a presumption of validity, because they were impressed on the land by the original owner and require a vote of the members to amend. Covenants can be positive (creating an affirmative obligation) or negative (a restriction regarding the use of property). Covenants run with the land, meaning they are binding on all future purchasers. The developer is entitled to impress covenants on property he still owns. When a developer acquires a tract or tracts of raw land, he owns all the subdivided lots that he then subdivides. Long-standing law allows a landowner to create covenants on his/her property.
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