Covenants vs Newer Rules & Regs: Which Prevails if Different?

Question

SF detached in Raleigh HOA, we've owned 15+ years with minimal HOA issues, the occasional "needs pressure washing."  Now new HOA management is issuing violations, saying No Commercial Vehicles allowed.  Our 2005 version of Rules & Regs clearly state "Parking Rule: Exception: Commercial Vehicle 1-ton or less allowed in driveway only" (no street, yard, etc.). New tenant has such a vehicle.  The HOA won't even acknowledge that our 2005 Rules & Regs ever existed, won't provide us with updated Rules & Regs or even confirm whether a new version exists.  Our version is available even now for download on our old Towne Square HOA account, (mgmt thru 2020, I think).  No Rules & Regs of any year can be found on the new management's website, only the original 1997 CCRs.  I've asked for any documentation that these 2005 Rules & Regs were rescinded, changed, or no longer in effect.  HOA management only replies by quoting the statement from original 1997 CCRs, no commercial vehicles; they will not address the discrepancy between our 2005 version of Rules & Regs that allows them, obviously showing a major change since the 1997 CCRs.  Are they allowed to just rescind Rules & Regs with no explanation?  Are Rules & Regs not valid HOA docs in NC?

Chris Martin · Answer

For what it's worth, I've been in exactly your position with a tenant of mine in a Holly Springs PUD back many years ago. We, collectively, resolved the issue with tenant parking the vehicle off-site.

Regarding getting a copy of the R&Rs, talk to the HOA president or other board member of the HOA. They are property owners in your neighborhood, not an external company with no stake in the community other than management fees.

The (implied - recorded in Wake County) 1997 CCRs predate the North Carolina Planned Community Act but many sections of this Act pertain "to all planned communities created in this State before January 1, 1999." Absent a recorded amended declaration, the recorded document is the governing document. I think @George has a good response.

What I have seen before is "selective enforcement" practices from some management companies. I'm not sure if this is applicable to you, but here are some references:

- Is Selective Enforcement of Restrictions Acceptable?

- NC Chapter 20: Motor Vehicles § 20‑4.2. Definitions - Commercial Vehicle

- NC DPS definition - Vehicles with a GVWR of 10,001 lbs. or more used as part of a business (including a non-profit organization) and crosses state lines, are considered commercial motor vehicles for purposes of most of the safety regulations.

Gregory Stanley · Answer

My experience is in Alabama association law, but I suspect the principles are universal:  There is a hierarchy of rules for HOAs and just like government documents, a lower ordinance can be used to execute and make more specific a "higher rule," but can't contradict it.  Analogize to how a federal law can lay out a process for protecting or enforcing a Constitutional right but can't change the right.  The CC&Rs and articles of incorporation are like the Constitution, then Bylaws, then Rules follow.  Bylaws can't contradict the higher governing documents and rules can't contradict the Bylaws.  Bylaws and rules can often be changed by the Board (depending on what the higher documents require), while the CC&Rs and Incorporation docs are intended to be more difficult to change and often require a vote with a super majority of all owners to change.  Probably the most important thing in your scenario is that only documents that are approved in formal minutes and are published to the members are enforceable.  Additionally, nothing can be enforced without a system to challenge the enforcement.  Notice and due process are key.

Lynn McGeein · Answer

Thank you, I've previously requested a copy of the new Rules & Regs, and now have also submitted the request stating I need them even if I need to order and pay for a whole resale disclosure package, although that shouldn't be required for a long-term owner who just wants the Rules & Regs

Theresa Harris · Answer

I'd get a lawyer involved.  They can't change rules without voting on them in which case the new rules replace the old ones.  They must provide you a copy of the rules and regulations.

Lynn McGeein · Answer

Thank you for this detailed answer.  I just looked up the covenants on the online city records, hoping to see an amended recording, and the original 1997 ones appear to be the only ones there, so this helps me understand the issue more fully, if they take precendent over Rules & Regs.  They shouldn't be allowed to issue Rules that clearly state one thing, then issue violations based on another, without explanation.  Not sure why their response wasn't just, 2005 version of rules were rescinded as of x date as they violated 1997 covenants -- shouldn't be that difficult of an explanation if true.

Gregory Stanley · Answer

I would check the association website.  In Alabama the law requires associations have these documents "readily available," and in 2024 that essentially means online.  So, I'd check the association portal or website and see what they have posted.  I wouldn't suspect the board members are intentionally obfuscating, but that they just don't know their responsibilities.  A new federal law levies specific requirements on all association boards with some heavy fines; you can search "Corporate Transparency Act" or read my article on that here.   There is also a facebook group called alabamahoacoa that has conversations about these universal issues.

Covenants vs Newer Rules & Regs: Which Prevails if Different?

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