Question:
If the CCRs have language that empower the ARC to make changes to the Design Guidelines, can the ARC make changes, even if they are contrary to the CCRs. For example, if the CCRs state that only white fences are permitted can the ARC change the guidelines to include black fences?
Our CCRs state: There shall be no limitation on the scope of amendments to the Design Guidelines; the ARB is expressly authorized to amend the Design Guidelines to remove requirements previously imposed or otherwise to make the Design Guidelines less restrictive.
– Kathryn
Answer:
Hi Kathryn,
According to the North Carolina Planned Community Act Section 47F‑2‑117(a), except for amendments executed by the declarant or certain lot owners under Section 47F‑2‑118(b), amendments to the declaration may only be made by affirmative vote or written agreement signed by lot owners of lots to which at least sixty‑seven percent (67%) of the votes in the association are allocated, or any larger majority the declaration specifies or by the declarant if necessary for the exercise of any development right. The declaration may specify a smaller number only if all of the lots are restricted exclusively to nonresidential use.
State law prevails over the provisions of the governing documents, and the CC&Rs prevail over rules and regulations when there are contradictions. Generally, while ARCs may be allowed to add rules and regulations regarding the design guidelines, the rules usually only expand on the CC&Rs but may not contradict them. It may be best to amend the CC&Rs themselves if the community wants to add a rule contrary to the existing CC&Rs to prevent confusion. For further guidance, kindly consult a lawyer.
Disclaimer: We are not lawyers. The information provided on this website does not constitute legal advice.
