Category Archives: Legal Compliance

Bylaws usually not recorded

Q. I just moved into a Union County community that had its homeowners’ association (HOA) formed in 1988. It was recently discovered that while the Articles of Incorporation and all the required updates of the covenants and restrictions are in order, apparently the bylaws of the HOA are not recorded in the county records.

Does this omission limit what the HOA can do in enforcement of the covenants and restrictions or dealing with any of the normal HOA management tasks? If so, what recourse is there for the HOA?First, let’s distinguish between the various governing documents for an HOA.

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Building Permits and Restrictive Covenants

    In South Carolina, a local planning agency is required by S.C. Code § 6-29-1145 to inquire in the permit application, or in written instructions provided to the applicant, if a parcel of land is restricted by a recorded covenant.

    The planning agency itself is not required to conduct a search of public records, but if the agency has actual notice of a covenant that “is contrary to, conflicts with, or prohibits” the activity for which a permit is being sought then the permit may not be issued.
    Actual notice may be derived from the application, materials or information submitted by the person requesting the permit, or from other sources, including, but not limited to, other property holders.  The planning agency may not issue the permit until such time as it receives confirmation that the restrictive covenant has been released for the parcel of land.

    An example of this requirement can be seen in the Charleston County Site Plan Review Application Package.

    This site and any information contained herein is intended for informational purposes and should not be construed as legal advice.  Seek a competent attorney for advice on any legal matter.

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Regulation of Private Roads

    Although many associations own and maintain their own private roads, certain South Carolina traffic regulations may still apply.  S.C. Code Ann. § 56-5-6310 provides that the Uniform Act Regulating Traffic on Highways applies to private roads if the title holder to the roads files written consent subjecting them to the provisions of the Act.  This consent does not render the roads public, it only provides authorization for highway safety regulations to apply.

    Certain provisions of the Act specifically refer to vehicles driven only on highways.  Highway is defined as “[t]he entire width between the boundary lines of every way publicly maintained when any part of it is open to the use of the public for purposes of vehicular traffic.”  S.C. Code Ann. § 56-1-10(6) .  These particular statutes do not apply to private roads and include, among other things, provisions for a driver’s license and registration and insurance requirements.  

    On the other hand, the Attorney General’s Office has determined that certain traffic offenses may be prosecuted whether the roads are private or public.  These offenses include driving under the influence of alcohol and reckless driving.

    Another issue raised by the ownership of private roads concerns the enforcement authority vested in private security guards.  S.C. Code Ann. § 40-18-110 grants a registered security guard with arrest authority equivalent to that of a deputy sheriff.  In following, a private security guard is authorized to issue a uniform traffic ticket on private property pursuant to S.C. Code Ann. § 56-7-10.  

    In sum, a private security guard in a neighborhood containing private roadways has the statutory power to issue traffic citations for violations of the South Carolina Uniform Act Regulating Traffic on Highways. 

    This site and any information contained herein is for informational purposes only and should not be construed as legal advice.  Seek a competent attorney for advice on any legal matter.

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* These articles and related content on this website are provided without warranty of any kind and in no way consitute or provide legal advice. You are advised to contact an attorney specializing in Association Management for legal advice related to your specific issue and community. Some articles are provided by thrid parties and online services. Display of these articles does in no way endorse the products or services of Community Association Management by the author(s).