Do local restrictions trump HOA rules? Who appoints HOA officers?

Q: When a community rule and a town or city ordinance conflict, which takes precedence?

A: We addressed the issue of priority of governing laws and documents in a recent column, which can be found here: http://bit.ly/15xZuJN

Sometimes HOAs have restrictions, rules or regulations that are more restrictive than local ordinances. That does not mean the HOA’s rules are “trumped” by the more relaxed ordinances. By law, if you buy a home in a community governed by restrictive covenants, you are bound to abide by those covenants. The fact that an HOA rule or local ordinance is more restrictive than the other does not make the more restrictive rule or ordinance unenforceable.

Q: Our HOA is having a very heated discussion as to whether the board of directors or the HOA members determine who will be named to the various officer positions: president, vice president, treasurer, secretary. We understand that the members elect the directors. Our debate is whether the directors or the owners appoint the officers. We’ve pointed out that corporate boards and local school boards are elected to the board, and the board members then designate the officer positions. Could you please advise us? This has become a sticking point within our community.

A: If you check your HOA’s bylaws you will probably find that they require that the officers be appointed by the board. While it may be possible, I have never seen bylaws that allow the members of the HOA to designate the officers. The NC Nonprofit Corporations Act doesn’t directly address this issue, but the language anticipates that officers will be appointed (and certainly removed) by the board, not the members.

Originally published in the Charlotte Observer on November 16, 2013.

2 thoughts on “Do local restrictions trump HOA rules? Who appoints HOA officers?

  1. Can anyone tell me if members can vote on changing a community code at their annual meeting? We had a petition{ in accordance with by-laws) to have us vote on a community code at our annual meeting. Some members say it was illegal since the by laws says the Board will decide on community codes. Our by-laws also state that at the annual meeting, members can conduct business if properly introduced.

    • I’m not sure what you mean by “community codes”. HOA’s are governed by federal, state and local laws; CCR’s (covenants, conditions and restrictions that are recorded at the courthouse); bylaws (which governing how the HOA corporate entity functions); and guidelines, rules and regulations (typically governing things like use of common areas, architectural and landscaping changes, and sometimes use of one’s own lot). No attorney would be able to answer your question without reviewing your community’s governing documents, and getting a full understanding of the nature of the changes made, and the process by which they were made.

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