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December 7, 2006
AARP - The Right to Stability in Rules and Charges
Section 105 - Homeowners shall have rights to vote to create, amend, or terminate deed restrictions and other important documents. Where an association's directors have power to change operating rules, the homeowners shall have notice and an opportunity, by majority vote, to override new rules and charges.
Most of the items inthis section are normally included in just about every set of documents. Rarely do directors have the power to amend, without an owner vote, most of the documents. Managers never have the power to institute rules, although directors, not wanting a confrontation with an owner, will sometimes blame the management for enforcing it.
The main item, once you work your way through all the legal verbiage, is the reversal of the implied powers of a board. In the past, courts have held that boards have the power to act, or create rules, when there is a need and there is no specific provision in the documents prohibiting it. This document wants there to be no implied powers. The board can only take actions or adopt rules if the documents expressly allow them to create a rule covering that subject. And even then, some rule implementation would require a 100% vote of the owners. One of these areas which would require a 100% vote is any rule that would "prohibit or materially restrict the use or occupancy of, or behavior within, individually owned lots or units.." So, unless your original documents deal with rentals, pets, smoking, noise, business use, and a hundred other potential issues or problems, your chances of amending your documents to deal with them is nil.
I had to laugh a little when I read the section on "Operating Rules". After listing the requirements, the author then adds that infamous word "reasonable". The whole advocacy movement is based on the fact that they don't believe elected boards of directors are capable of being "reasonable" and so legislation is required to make them so. Of course, their definition of "reasonable" rarely co-incides with others" which is the heart of the issue. Only courts can decide what is "reasonable", so this doesn't improve much.
The rest deals with requiring notice and a meeting to vote on any rule (creation, change or elimination) for any rule that isn't put in place because of a threat to the health, safety or security of the owners; and the right to call a special meeting (5% of the owners can call one) to rescind any rule.
This one is aiming at removing the right of an association to have any say regarding what an owner can, or can't do with their property, which pretty much guts architectural control, as well as providing any stability in an owner's expectations of the people who live around them.
Posted by joewest at December 7, 2006 1:58 PM