Question: Are the common areas of our HOA governed by the same rules and regulations that the members are governed by? Example: If the rules state that a homeowner cannot install a fence on their property higher than four feet and that fence can only be constructed of wood, do the fences around common areas have to comply with these same guidelines?

Answer: No, common area fence standards can and often are different since there are different considerations than between neighbor fences. For example, common area boundary fences are often taller and more durable (like chainlink) which would not pass the curb appeal test.

Question: Can our Board of Directors enact rules or can it only enforce rules that are outlined in the governing documents?

Answer: The board can enact a rule by virtue of its authority as long as it does not contradict specific language in the governing documents. This grants the board a considerable power which it should use judiciously. Since the world is awash in rules and regulations already, a basic guideline for HOA rulemaking is "fewer is better." The board might even considering rescinding a few that prior boards put into effect, especially those that deal with issues that are already enforced by local ordinances. If you can get the police to enforce a rule, why would the HOA get in the middle. Only provide rules that uniquely apply to the HOA.

Question: Our bylaws were updated several years ago but were never recorded. Are those updated but not recorded bylaws enforceable?

Answer: Generally, only recorded bylaws are enforceable. However, if the unrecorded bylaws reflect state statute, they may be enforceable. Get an opinion from a qualified attorney in your state based on your particular situation.

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