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.
Charlotte attorney Michael Hunter represents community and condominium associations for the firm of Horack Talley. Email questions to firstname.lastname@example.org. Not every question receives a reply. Find his blog at www.CarolinaCommonElements.com.
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