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KandiM
(Alaska)
Posts:3
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| 05/02/2008 1:11 PM |
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| Can anyone tell me if my HOA can block the rental/lease of my home if the HOA was not officially formed until after our purchase? A management company was in charge of the HOA at the time of purchase but no board had been elected and we were not advised of the covenants until the first meeting. |
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SusanW1
(Michigan)
Posts:2116
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| 05/02/2008 1:14 PM |
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Were you given any guidelines from the developer (builder)when you bought the house?
Didn't you know that you were moving into an Associated neighborhood?
Who did you think paid for the common elements in the subdivision?
Look at your purchase agreement or mortgage.
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KandiM
(Alaska)
Posts:3
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| 05/02/2008 1:23 PM |
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| The realtor made us aware that the HOA existed and verbally told us some of the elements dues would cover. They did not provide any other information. My question is this; Can they legally enforce a rule that did not exist on paper until after we purchased the home? |
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MaryA1
(Arizona)
Posts:2156
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| 05/02/2008 1:31 PM |
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Kandi,
You may not have been aware of the rules, etc., but I'm sure they were in place at the time your purchased your home. Traditionally the developer forms the HOA before he even begins to build any of the houses. The Articles of Inc., Bylaws and CCRs (covenants, conditions, and restrictions) are written and the CCRs, at least, are recorded with the Co. Recorder. These are the gov. docs. of the assn and contain the rules you must abide by. The deed to your property should state that there are deed restrictions which means CCRs. It may or may not indicate the presence of an HOA, however, the CCRs will state that an HOA will govern the assn. If you don't have these documents your need to contact the developer if he is still in control, or the board or manager to obtain copies. |
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KandiM
(Alaska)
Posts:3
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| 05/02/2008 1:40 PM |
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| Okay, so my next question is what can the HOA do to us if we rent or lease it anyways? |
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GlenL
(Ohio)
Posts:1362
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| 05/02/2008 2:53 PM |
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They can go to court and obtain an injunction preventing it and seek reimbursement for all their legal fees to do so. They may be able to fine you for violating the CC&R's everything they can do is spelled out in the CC&R's. Have you read them?
BTW somewhere in the contract with your realtor or the purchase contract should be language to the effect that no matter what you are "told" by the seller or his agent nothing that isn't written down and agreed to by both parties' counts. And yes if you signed it even if you didn't read it you have to abide by it.
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SusanW1
(Michigan)
Posts:2116
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| 05/02/2008 6:45 PM |
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Kandi asked: Can they legally enforce a rule that did not exist on paper until after we purchased the home?
1) If this rule passed AFTER you purchased the home, then you knew it was up for vote by the members of the homeowner's association. Did you know about its adoption?
2) If you never, ever, saw the CCRs or bylaws - and this rule/restriction was already in it - you are SOL. Your real estate agent should also be notified that her omission to provide proper paperwork to the propective owners is going to cost you plenty! If you had the CCRs/rules paperwork and just never read them, then it's the ole Buyer Beware.
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MaryA1
(Arizona)
Posts:2156
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| 05/03/2008 4:54 AM |
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Kandi,
To specifically answer your question: "Can they legally enforce a rule that did not exist on paper until after we purchased the home?" THe answer is "YES"! Rules are changed and/or adopted in two ways:
1) rules contained in the CCRs require a vote of the members to change therefore you should have been made aware of a CCR rule change. If you just didn't bother to vote, then shame on you. If the HOA didn't bother to seek the vote of the members, then shame on them, in which case you have a good case against them, but be prepared to pay an attorney to fight them.
2) most gov. docs. have a provision which gives the board the authority to pass additional rules & regs that are not a part of the CCRs. In many instances these rules & regs do not require the vote of the members. Perhaps this is such a rule.
Either way, you should take the time to become thoroughly familiar with your gov. doc. and/or any HOA state laws. Before you ever take any action against the board or even make any accusations, you must know that you are in the right.
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PaulM
(Pennsylvania)
Posts:1347
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| 05/03/2008 5:02 AM |
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KandiM: An "association" is filed with officials prior to its development by the builder--not during and not after. Whether you were given appropriate paperwork at purchase of your unit or not, it does not negate that an 'association' has been defined and recorded.
Now you must review your documents carefully to learn IF indeed there is a clause which addresses your ability to NOT lease or rent your purchased unit.
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BruceF1
(Connecticut)
Posts:525
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| 05/03/2008 5:51 AM |
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KandiM,
In all liklihood, the association existed when you purchased your home. I don't know, in your case, why you were not aware of it. Maybe nobody gave you copies of the governing documents. This should have been done before you even signed the sales agreement. However, I also know of many instances where people were given the governing documents and they simply ignored them. They never bothered to read them and try to understand them, thinking they were no big deal, until later on. The governing documents can look formidable, like a lot of legal mumbo jumbo, so it's easy to understand why some people just set them aside.
If you purchased early in the community's development, the association was most likely run by the developer, who hired a management company to handle the everyday business of managing the HOA. The board existed, but it was people appointed by the developer (maybe even the developer was one of them) that served on it. Then, comes the time that the association is turned over to the homeowners and a new board is elected. Perhaps this is the first time you became aware of the existence of the HOA, and therefore you believe that the HOA came into existence at this time. (I've known people to believe that this is the case, too; even some developers!)
As for the question, can the HOA prohibit you from renting your unit? Yes, if the CCRs (some call them a Declaration) give the board that authority. You need to read your governing documents to see what they have to say about rentals. |
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