HOMEOWNER ASSOCIATION GOVERNING DOCUMENTS
BY-LAWS, COVENANTS & RESTRICTIONS
QUESTIONS AND ANSWERS
Question #1: Are Association / Club ‘restrictions’ actually DEED restrictions? It’s confusing me because I don’t think of a property’s deed restrictions involving the Homeowner Association. I associate by-laws, etc. with the Association / Club, not deed restrictions. Wouldn’t deed restrictions be in place regardless of the existence of the Association/Club?
Answer: Homeowner Association governing documents are the By-Laws, Covenants & Restrictions. And, yes, they are legal Deed restrictions, recorded with the County.
All deeds do not necessarily have restrictions. A deed may show nothing more than meets & bounds and past recorded transfers of ownership.
When someone buys a home in any community with a Homeowner’s Association, and has a title search prepared, the community’s governing documents should be included in every Title report, as they are legally recorded Deed restrictions. If they are not a part of a Title report, they should be requested from the Title company. Residents should also be able to request a copy from their Association, or they may be accessible on a community’s website.
Nearly every community has rules to preserve home values, beyond those of a Township’s ordinances. Township ordinances apply to properties of all values and sizes and are not intended to manage individual community’s specific look or appeal. Homeowners Association restrictions can address these factors and others that affect property appeal and values. Some of the most strict restrictions can be found in condominium Associations, due to the close proximity of neighbors to neighbors.
Question #2: Do the Covenants & Restrictions of an Association / Club “supercede” those of the Township?
Answer: Although "supercede" is commonly the terminology in explaining the order of Club restrictions & Twp. ordinances, we don't want to use "supercede" (having superior right) as a blanket term, making it appear that an Association / Club's governing documents "set aside" all Twp. ordinances. They do not.
It is best stated that where any Association restriction (as per the legal governing documents) are stricter than the Twp. ordinance, the stricter Assoc. restriction must be upheld. Just as, if the Twp. has a stricter ordinance than the Club's Covenants & Restrictions, the Twp. ordinance would have to be complied with in order to get a permit, or to be permissible by the Twp.
For example, if the Association / Club has a set-back restriction of 25' and the Twp. ordinance requires a 15' set-back, the 25' set-back must be complied with. If the Twp. had a 30’ required set-back, the 30’ set-back would then need to be complied with.
In other words, the legal deed restrictions of an Association / Club, individual property deed restrictions, Township ordinances, or Twp./State buffers or laws, cannot be set aside by a less stringent restriction of any other entity. The most strict, or stringent, restriction applies, regardless of who's restriction it is.
The Twp. has no authority to relax the deed restrictions within a community, and a community has no authority to relax Twp. ordinances.
Question #3: If the Township can give variances on ordinance restrictions, why can’t the Homeowner Association / Club grant variances? Especially if the Association / Club’s power can be superior to the Township?
Answer: Township ordinances are not recorded deed restrictions on a property. A property owner does not buy a property with any guarantee that Twp. ordinances will not change, or that the property owner has decision making authority in changing Township ordinances.
Governing documents, By-Laws, Covenants & Restrictions, are legally recorded deed restrictions upon, & attached to, all properties in a community. They are meant to protect that what you bought is going to remain as stated in the governing documents, or only changed by a prescribed number of owners voting for such changes.
Unlike the Township, Associations / Clubs do not have the ability to grant variances on definitive Covenants & Restrictions. Governing Documents give owners protected ownership rights. These documents also dictate what requirements are needed to amend them, typically a stated quorum of the resident owners.
For an Association / Club to grant variances, it would in effect, be altering the legal property ownership rights of all the residents. This is why it is the Committee Members & Board Members fiduciary obligation to uphold the governing documents, unless amended by a required vote of the resident owners in the entire community.
Covenants & Restrictions can have A.) definitive deed restrictions that can not be deviated from, (Example: “that no structure of any kind can be constructed or erected less than 75’ from the center line of the abutting main trail, street or road.”)
AND, they can have B.) deed restrictions that give authority to a committee (ie: Rules & Property or Architectural Committee) to make decisions in specific areas. (Example: “that no fence or wall higher than four feet, other than a hedge or shrub fence shall be permitted, built or constructed unless approval is first obtained from the Rules & Property Committee.”) It can give a Committee and/or the Board the authority to set rules that micro-manage the community. These rules can be altered as needed by a Board/Committee vote.
Question #4: Does the President of the Association / Club have the authority to give approvals or make decisions?
Answer: HOA Administrative policy, normally does not give any one person - not the President, not a Committee Chair, not any one person - the power or authority to grant approvals, or make decisions for or on behalf of the Association / Club, unless authority is specifically given by a majority Board vote.
All board votes, including the giving of authority to any one person/s, or committees should be documented in recorded meeting minutes.
It is the fiduciary duty of the Board of Directors to uphold the legal governing documents, the By-Laws, Covenants & Restrictions of the Association / Club. In doing so, decisions are made by the entire Board through a majority rule, or as so delegated to a committee, with a majority committee rule.
By-Laws should specifically state the duties of the Officers: President, Vice President, Secretary & Treasurer, in carrying out the business of the Club and administrating the voted upon Board / Committee decisions. It does not include making changes, giving “variances,” or setting aside any By-Law, Covenant or Restriction.
Changes, or amendments to any By-Laws, Covenants & Restrictions, can only be
legally done by the requirements stipulated in these documents. Typically it is
by a vote of the resident owners, with a quorum, or majority, as specifically
stated in the governing documents.