THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Saturday, December 10, 1994 TAG: 9412080298
SECTION: REAL ESTATE WEEKLY PAGE: 02 EDITION: FINAL
COLUMN: Common Ground
SOURCE: G. Robert Kirkland and Michael A. Inman
LENGTH: Medium: 76 lines
I have recently been appointed to a committee in our condominium association to review the rules and regulations and to update them. The rules we have now were put in place by the developer and are often different from what most of the residents would prefer.
Many rules are listed in the bylaws. There are about 25 of them. It is my understanding that boards of directors are able to change the rules without getting the votes of all the members.
In our case, wouldn't that be like changing the bylaws when the bylaws require a vote of the members? This is confusing.
You are quite right, it is confusing. This dilemma arises from the fact that different document drafters take different approaches to writing bylaws. I think you will find that most of the newer condominium documents prepared in the last five or six years in Hampton Roads do not include rules in the bylaws.
There were numerous sets of documents put to record prior to that time that did not list rules and regulations in the bylaws. Most documents empower the board to amend rules and regulations and enact new rules and regulations for the benefit of all unit owners.
Clearly, it should not require a vote of the membership to decide whether the parking rules should be changed or whether there needs to be a tightening up of the rules concerning placement of personal property on decks outside the unit. Likewise, it should not require a vote of the membership to decide on the swimming pool rules.
Nevertheless, where the rules are set forth in the bylaws, they are, technically, part of the bylaws and would require amending in the manner described in the bylaws. Typically, there is an amendment section that requires a vote of two-thirds or three-fourths of the members in order to amend the documents.
There is a requirement for notice of the meting and other technical requirements in order for an amendment to take place. Additionally, there will have to be an amendment document recorded at the courthouse in order to formally amend the bylaws.
This, in our opinion, is a very cumbersome way to go about regulating the use of condo association property and conduct of owners. If you are in a small condo, we believe your board should consider an amendment whereby all rules are deleted from the bylaws, and the board given clear authority to make rules and regulations.
Your association will function far more efficiently in that fashion. The way you are set up now, there is certainly a dampening effect on changing the rules because of the tremendous effort it would take to do so.
Rather than having piecemeal changes of the rules set forth in your bylaws, it seems preferable to remove the rules from the bylaws entirely, and make them a separate document that can be changed by the board of directors.
We hasten to add that if there is a subject not covered in the rules, your board is free to make a rule or regulation concerning that matter, in that they are not then amending the bylaws, because they are undertaking a new subject.
But you must be careful when treating a subject that is addressed in any way in the bylaws, in that a court may interpret the board's rule to be at odds with the bylaws and, therefore, not enforceable.
It would be wise to seek legal counsel after you have decided on your new or amended rules to insure that you are going to be able to enforce these new rues. MEMO: G. Robert Kirkland, president of a Virginia Beach property management
consulting firm, and attorney Michael A. Inman specialize in Virginia
community association issues and are affiliated with the Southeastern
Virginia chapter of the Community Associations Institute. Send comments
and questions to them at Real Estate Weekly, 150 W. Brambleton Ave.,
Norfolk, Va. 23510. To submit questions by phone, call 446-2033; fax:
446-2531.
by CNB