Proposed new regulations contradict covenants

Visitor Question: We have Deeds and Restrictions set up in our community currently. Our new board members will not pay to have them rewritten; however, they have taken it upon themselves to add Rules and Regulations that contradict our Deeds and Restrictions. Is this legal? Can they actually enforce such new rules and regulations?

Editors Reply: The answers to your questions depend entirely on how the original covenants were written. That set of deed restrictions should address setting up the homeowners associations, what powers it has, how it is governed, and any limitations on the power of an individual board.

So if your original deed restrictions say that after the HOA has been set up, its board may change any and all rules and regulations found in the original document, of course what your current governing group is doing is legal.

If there is a typical set-up, it is that the covenants imposed by the developer provide an overall framework that may include some broad specifications, such as land uses allowed, lot sizes, common ground, and manner of selecting the board. Then often the covenants say that once the HOA has been formed and its board and officers elected, the board can tackle minor details on its own. For example, the deed restrictions would say that only single-family homes can be built in the development, but then give the power to determine permissible exterior paint colors to the board.

In other cases we have known, however, the HOA board has complete power to alter what you call rules and regulations at will, providing the correct procedures are followed. The process may or may not provide for an HOA meeting where all owners can express an opinion.

So to determine the answer to the question about legality, you and your neighbors will need to read the language of your master deed or whatever the document setting forth the deed restriction is called in your state and city.

Next you ask if the board can actually enforce rules and regulations that contradict the original restrictions. Enforcement power too varies widely, depending on what the language of the original covenants says. Sometimes the board has what we think are fairly extreme powers, in which they can fine non-complying homeowners or even evict them. In other situations, any property owner wishing to contest a practice or situation in the development that is believed to be contrary to the deed restrictions must go to court to try to prove the case.

Thus we are left with two answers that you will probably find unsatisfying. In both cases, the answer is "it depends."

A fairly common situation is ambiguity in the deed restrictions about what happens when the board and some homeowners have a different interpretation about the powers of the board. That is when the people who feel aggrieved will need to consult with an attorney with some degree of specialization in real estate law. But it is quite important in a situation where people have to live in close proximity to one another that you try to resolve any differences of opinion amiably.

It is not at all unusual to find that an HOA board becomes self-important and dictatorial, and doesn't want to listen to any input. Let's hope that is not the situation in your case.

If you do not have a copy of your deed restrictions, obtain a complete copy and then read it. You should come away with a clear picture of what the board can and cannot do. If you feel the document is unclear, that is when a group of you have to contemplate retaining an attorney if and when you disagree with the actions of the board.

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