CC&Rs (Covenants, Conditions, and Restrictions) are legal documents that establish guidelines and limitations for a specific property or development. They are typically created by a developer or builder and outline rules and regulations related to the property’s use, maintenance, and modification.
CC&Rs may include restrictions on the type of structures that can be built, landscaping requirements, noise levels, and pet ownership, among other things. These rules are designed to maintain the integrity and value of the property and are legally binding for all property owners within the development.
On the other hand, by-laws are rules and regulations that govern an organization’s internal operations, such as a homeowners association (HOA) or a corporation. By-laws typically address the election and duties of board members, voting procedures, meetings, and financial matters.
By-laws are legally binding once they are approved by the organization’s members. By-laws provide a framework for how the organization operates and help ensure everyone is treated fairly and equitably.
What Gives the Condominium Association Authority over a Condominium?
The condominium association usually derives its authority over a condominium from these sources:
- Governing documents: The authority of the condominium association is primarily derived from the governing documents, which include the declaration of the condominium, by-laws, and rules and regulations. These documents outline the powers and responsibilities of the association, as well as the rights and obligations of the owners.
- State law: The condominium association’s authority is also derived from state laws that regulate condominiums. These laws define the powers and responsibilities of the association and provide guidelines for the creation and operation of condominiums.
- Contracts: The association may also derive authority from contracts with third parties, such as property management companies, vendors, and contractors. These contracts may grant the association the power to make decisions on the owners’ behalf and enforce the governing documents.
- Board of directors: The condominium association’s authority is ultimately vested in the board of directors, which the owners elect. The board is responsible for making decisions on behalf of the association and enforcing the governing documents. The board’s authority is subject to the governing documents, state law, and the will of the owners, who may have the power to override the board’s decisions through the voting process.
What Can the Condominium Association Regulate?
The condominium association can regulate issues related to the use, maintenance, and governance of the condominium property.
The specific scope of regulation depends on the governing documents and state law, but some standard areas of regulation include:
- Common areas: The association can regulate the use and maintenance of common areas, such as the lobby, swimming pool, or parking garage. The association can set rules for access, hours of operation, and behavior in these areas.
- Architectural controls: The association can regulate the appearance and design of the units and the exterior of the buildings, including setting standards for the types of materials that can be used, the colors that can be painted, and the size and location of signs.
- Maintenance and repairs: The association can regulate the maintenance and repair of the common areas and the individual units, including setting standards for cleanliness, repairs, and upkeep of the property.
- Use restrictions: The association can regulate the use of the units, such as setting rules for occupancy, noise, and pets. The association can set restrictions on short-term rentals or require owners to obtain approval before significantly modifying their units.
- Governance: The association can regulate its own governance by setting rules for elections, meetings, and finances. It can set procedures for the election of board members, conduct meetings, and manage the association’s budget.
The scope of regulation is subject to governing documents and state law. These factors may limit the association’s authority to regulate. The association must act within the bounds of the law and cannot infringe upon the individual rights of owners or residents.
Can a Condominium Association Change or Modify the CC&R or By-Laws?
Yes, a condominium association can change or modify the CC&Rs or by-laws. Typically, the process for changing the CC&Rs or by-laws will involve these steps:
- Board approval: The association’s board of directors must approve the proposed changes to the CC&Rs or by-laws.
- Notice to owners: The association must notify all owners of the proposed changes within the condominium.
- Owner vote: The owners within the condominium must be given an opportunity to vote on the proposed changes. Typically, a certain percentage of owners must approve the changes for them to be adopted.
- Filing of amendments: Once the changes have been approved, the association must file the amended CC&Rs or by-laws with the appropriate government agency, typically by filing the changes with the county recorder’s office.
The association must ensure that the changes are consistent with state law and the governing documents and do not infringe upon the individual rights of owners or residents. For this reason, the process for changing the CC&Rs or by-laws may require the assistance of an attorney.
Will a Use that Violates the CC&R or By-Laws Ever Be Permitted?
It is possible for a use that violates the CC&Rs or by-laws to be permitted in certain circumstances, but it generally requires a variance and non-conforming use designation.
A variance is a legal exception to the zoning regulations or CC&Rs that allows a property owner to deviate from the requirements.
For example, if the CC&Rs or by-laws prohibit certain types of home businesses, a homeowner could apply for a variance to allow them to operate their business from home.
Variances and non-conforming uses are typically granted only if the proposed use does not significantly impact the surrounding properties, and the applicant can demonstrate a hardship or practical difficulty in complying with the CC&Rs or by-laws.
A non-conforming use is a pre-existing use of the property that does not comply with current zoning or CC&R requirements.
For example, if the CC&Rs prohibit the operation of a short-term rental, but an owner has been renting their unit out on a short-term basis for years before the CC&Rs were changed, they may be granted a non-conforming use designation that allows them to continue renting the unit out.
What If There Is a Violation of the CC&R or By-Laws?
If there is a violation of the CC&Rs or by-laws, the association may take steps to enforce the rules. This may involve notifying the owner of the violation and allowing them to correct it. If the owner doesn’t comply, the association can impose fines, seek an injunction, or file a lawsuit.
A hearing for a zoning variance is typically not needed in the context of a condominium association. While the association may have its own rules and regulations, it does not have the authority to regulate zoning or land use like a local government. The association’s authority is limited to regulating the use and governance of the condominium property.
Should I Consult a Real Estate Attorney for My CC&R or By-Law Problem?
If you are facing issues related to condominium association governance, CC&Rs, by-laws, or property use violations, seek the guidance of a qualified real estate lawyer.
An experienced attorney can review the governing documents and applicable law to help you understand your rights and obligations as a property owner or member of the association.
Contacting a real estate lawyer is the most proactive step you can take to protect your interests and uphold your property rights.
