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IreneP
(Arizona)

Posts:21

11/17/2011 2:09 PM
Brad, thank you for your response. If we are being singled out, ONLY US, as the Plaintiffs have stated to others, then that's harassment. Perhaps we should be filing a counter-claim against the Plaintiffs for their violations of the CC&Rs. Bottomline, when you bought your home, you agreed to the restrictions. If you are not in compliance and someone is suing you for that in my opinion you have no defense and will lose big. Yes, Brad, we understand this now. We never imagined homeowners could be so ruthless. But it's still considered harassment with the facts we have.

IreneP
(Arizona)

Posts:21

11/17/2011 2:22 PM
Tim, you are right about 12-548, I misread it. Thanks. You indicate about the approval process. The only entity to go to for approvals is the City. If there is no HOA and no one to go to except the City for approvals, and they have no problem with parking our RV, boat and work trailers and cat fence, dog run within our "building envelope", then why would we be in violation of the CC&Rs?

IreneP
(Arizona)

Posts:21

11/17/2011 2:30 PM
Thanks John for your straightforwardness. We are not fools. That may be your opinion. We are fighting for our property here and will continue to do so the best way we can. Everyone says "get an attorney". Would you like to conttribute to our fund? We live in rural AZ and work is very slow right now. Attorney's are no cheap. We've already inquired and done the consultation thing. $8500 to start the process. Don't think so. We have never been involved in CC&Rs and never will be again. CC&Rs alone are bad enough. WOULD NEVER GET INVOLVED IN AN HOA. The fact is we have vengeful neighbors who are retired and have nothing better to do and have the arrogance (and money) to harass us.

IreneP
(Arizona)

Posts:21

11/17/2011 2:31 PM
Thank you Melissa. My husband is a United States Marine and they do not go down with an easy fight. And being a wife of a Marine, I'm there all the way.

JohnB26
(South Carolina)

Posts:579

11/17/2011 3:20 PM
i also will never, repeat, never purchase a home with CCRs or a HOA again right now i am in a senior 55+ HOA community with CCRs (may the creator give me strength) your property DOES HAVE CCRs, and, if, repeat if, you are actually in violation, YOU WILL LOSE INCLUDING THE OBLIGATION TO PAY THE PLAINTIFF'S LEGAL FEES if you don't pay up you will lose your home to their petition for foreclosure CHECK WITH THE COUNTY FOR AN ACTUAL CERTIFIED COPY OF THE CURRENT CCRs ON FILE (this will only cost a couple of $ for copying and cert fees) AFTER, repeat AFTER, you review the CURRENT docs on file, you will need to pick your battles more carefully than our administration does On the battlefield your marine risks his life for our country (and does not deserve this BS at home) and is covered by insurance and other benefits (well well earned) ..... but ..... at home y'all are subject to a legal system which was forged by the necessity to keep slaves BEST OF LUCK AND THANK-YOU TO THE MARINE pick your battles wisely

JohnB26
(South Carolina)

Posts:579

11/17/2011 3:49 PM
ps. it the ABSENCE of a HOA which has you 'trapped' a HOA should/must enforce a CCR violation against all owners equally or face a charge of 'selective enforcement' however, the absence of a HOA does NOT invalidate the filed CCRs ... which become (selectively) enforceable by any other owner via a court of law your letter to the atty just gave him adequate ammo to ensure your loss in court after reading the 2000 CCRs posted at Acrobat ... Ifeel that you may not have the current 2004 version WHICH WILL SUPERCEDE the older version (whether the new version was properly voted in and recorded MAY be an issue) IN MY HUMBLE OPINION: if you did not get or attempt to get arch. committee aproval (even if the committee did not exist) you very likely may lose in the courtroom GET A COPY OF THE CURRENT DOCS

JohnB26
(South Carolina)

Posts:579

11/17/2011 4:56 PM
pps. yes, the rules CAN change by 'democratic' vote, AND become retroactive [begin rant] situations like this one are partially what fuel conversion to Islam, or other 'theocracies', since God's rules are 'written in stone' and do NOT change at the whim of the populace [end rant] .............. just sayin' lock-n-load

SteveM9
(Massachusetts)

Posts:1529

11/17/2011 4:57 PM
Everyone says "get an attorney". Would you like to conttribute to our fund? We live in rural AZ and work is very slow right now. Attorney's are no cheap. We've already inquired and done the consultation thing. $8500 to start the process. Don't think so. So call another attorney. A really cheap, bad attorney will be better than none at all. You should have never written that letter to the other side's lawyer. They will use it as evidence and confirmation that you are violating some of the bylaws. Dont write them any more letters. If they find just 1 thing you are in violation of the judge will award them legal fees. Try to settle this out of court, or you will learn a hard lesson about how the legal system works in this country.

SteveM9
(Massachusetts)

Posts:1529

11/17/2011 5:05 PM
If we are being singled out, ONLY US, as the Plaintiffs have stated to others, then that's harassment. Yes, if you have no HOA, another homeowner can single you out. This is how it works. If you had a HOA, they would have to apply the same rules to everyone and apply fines equally. Individual homeowners do not need to do this. If you want to enforce the CCR/bylaws on your other neighbors who are also in violation, you will need to take each of them to court. A court will not see this as harassment.

IreneP
(Arizona)

Posts:21

11/17/2011 5:22 PM
John, thank you for your comments. Your comment: (whether the new version was properly voted in and recorded MAY be an issue) It's interesting you wrote what you did. I had met with the Chief Title Officer at the Title company about our situation and we went through each of the 36 lots in the subdivision and it turned out the 2nd developer only "owned" 53% of the lots. In the 2004 CC&Rs, link is below, and the 2000 CC&Rs it states in paragraph 5C that the CC&Rs can be amended with 70% of the owners. I have gone through the 2004 version, word for word, and there are only three changes. One being the minimum sq. footage of a dwelling from 1500 to 1300 sf. That being said, then the 2004 CC&Rs are invalid. So, since we purchased in 2003, we would then be upholden to the 2000 version. But, the 2004 CC&Rs are the ones that are recorded with our property when I pulled the title report. 2004 CC&Rs link - https://acrobat.com/#d=l1TaMHAEJMsBwE*ZHfWZ3g

TimB4
(Virginia)

Posts:3801

11/17/2011 5:53 PM
Irene, According to the AZ Corporation Commission Needles Creek Development, LLC still exists, is in good standing and has a registered agent. Unless the developer turned over control of the HOA to the members, this is where you should have sent architectural requests to. If you have time prior to the court date, you might want to send requests now (don't go into detail about any court case) and see if you can get approval after the fact. If you can, then you can show that you did get Association approval. I agree with others, parts of your reply could be considered an admission of actually violating the covenants and your response may have caused you more issues than solved them. Of course, that interpretation would be the courts. Saying others are doing it also doesn't always work. Best example I can give of that is speeding. Lets say you are pulled over for speeding and issued a ticket. While the ticket is being written someone else speeds by you. It doesn't mitigate the fact that you were speeding. All that says is that they are also guilty of speeding. As I said, if the development isn't complete and/or turned over to the members, send a letter to the registered agent saying you don't know who to contact about seeking Architectural approval and submit applications for what changes you have done. Then see what response you get back. Tim

SteveM9
(Massachusetts)

Posts:1529

11/17/2011 6:15 PM
That being said, then the 2004 CC&Rs are invalid. Even if they are, will that matter to your case? It sounds like your also violating the CC&R's from 2000 as well.

MelissaP1
(Alabama)

Posts:2207

11/17/2011 6:17 PM
Here is some helpful information for you to save some costs on legal. Legal fees may be tax deductible if the legal costs involve investment property. Something that came in handy when I had to hire a lawyer against my HOA once. It cost me approximately $1500 - $1800 if I recall. That was a retainer fee and some communication fees. Which reducing contact with the lawyer as much as possible can reduce some of that cost. You may be able to find some legal help in your local yellow pages. There are some "free lawyer advice" sites/places you may be able to call. We have a local TV station which as a legal show every sunday. It's a call in type show and they have a website. You may find a similar resources in your area. There are some "contigency" type lawyers out there. You pay only if you win. However, it not being exactly a monetary case this may not be the right option for you. The case is more of a "Punitive" nature to enforce you to be in compliance of the law. Which you may be handling it okay without a lawyer. It just doubles your workload a bit. You need to be prepared to lose as well as defend. There is a city component involved in this case as well. Think many are focused on the CC&R and HOA aspect of what your dealing with. However, if the streets are indeed part of the city control, then your CC&R's are overrided if there are restrictions written in them in regards to street control. We went through something similar. We had to get separate water meters installed. However, in order to do that we had to turn over our streets to the City. Our CC&R's still referenced the HOA being in charge of the streets. We had to upgrade our CC&R's to reflect this change. The copy you have hasn't been updated to reflect this condition. I would contact the city for proof they own those roads and get their code regulations. This is why I say the neighbors are barking up the wrong tree. They should have went to the city instead for the road violations. So be prepared for the city to step in if the court situation doesn't work. I am sure they will try many different angles... You can win or lose, but you stayed the course!

Former HOA President

IreneP
(Arizona)

Posts:21

11/17/2011 6:28 PM
Tim, you've brought up an EXCELLENT opportunity. The link you provided to the AZ Corp Commission revealed that the 2004 CC&Rs are invalid. The 2004 CC&Rs were signed by the new developer (and managing partner, Greg McIntyre). But the Needles Creek Development, LLC with the AZ Corp Commission has the 2000 developer's information as the managing member still. This is very interesting. It might very well be a good idea to contact the registered agent (not mentioning the court case, of course). Our other, more pressing dilemma, is that they have requested a Preliminary Injunction hearing. Anyone have any experience with that? Tim, I will keep everyone updated on the progress of this situation. I haven't found any case studies that deal with what we are going through. There are case studies about HOAs, but not strictly CC&Rs.

IreneP
(Arizona)

Posts:21

11/17/2011 6:36 PM
Posted By MelissaP1 on 11/17/2011 6:17 PM Here is some helpful information for you to save some costs on legal. Legal fees may be tax deductible if the legal costs involve investment property. Something that came in handy when I had to hire a lawyer against my HOA once. It cost me approximately $1500 - $1800 if I recall. That was a retainer fee and some communication fees. Which reducing contact with the lawyer as much as possible can reduce some of that cost. You may be able to find some legal help in your local yellow pages. There are some "free lawyer advice" sites/places you may be able to call. We have a local TV station which as a legal show every sunday. It's a call in type show and they have a website. You may find a similar resources in your area. There are some "contigency" type lawyers out there. You pay only if you win. However, it not being exactly a monetary case this may not be the right option for you. The case is more of a "Punitive" nature to enforce you to be in compliance of the law. Which you may be handling it okay without a lawyer. It just doubles your workload a bit. You need to be prepared to lose as well as defend. There is a city component involved in this case as well. Think many are focused on the CC&R and HOA aspect of what your dealing with. However, if the streets are indeed part of the city control, then your CC&R's are overrided if there are restrictions written in them in regards to street control. We went through something similar. We had to get separate water meters installed. However, in order to do that we had to turn over our streets to the City. Our CC&R's still referenced the HOA being in charge of the streets. We had to upgrade our CC&R's to reflect this change. The copy you have hasn't been updated to reflect this condition. I would contact the city for proof they own those roads and get their code regulations. This is why I say the neighbors are barking up the wrong tree. They should have went to the city instead for the road violations. So be prepared for the city to step in if the court situation doesn't work. I am sure they will try many different angles... You can win or lose, but you stayed the course! Melissa, I had obtained the recorded Final Plat from the Title Co. and it states on there that "all streets and all public rights-of-way of Needles Creek subdivision Unit 1 have been dedicated and conveyed to the City of Show Low." The Plaintiffs have already sent an anonymous letter to the City about our alleged violations in 2006 and the City has done NOTHING. So they are not concerned about our issues. Which is why the Plaintiffs are going through the Courts.

IreneP
(Arizona)

Posts:21

11/17/2011 6:42 PM
Posted By SteveM9 on 11/17/2011 6:15 PM That being said, then the 2004 CC&Rs are invalid. Even if they are, will that matter to your case? It sounds like your also violating the CC&R's from 2000 as well. We closed on the property in 2003. These 2004 CC&Rs were recorded with our title, which may be invalid. When we closed on the property, we were only provided with a "draft copy" of the CC&Rs. Never provided with the final CC&Rs and didn't know about the 2000 CC&Rs.

BradP
(Kansas)

Posts:2491

11/17/2011 7:46 PM
Posted By IreneP on 11/17/2011 6:42 PM Posted By SteveM9 on 11/17/2011 6:15 PM That being said, then the 2004 CC&Rs are invalid. Even if they are, will that matter to your case? It sounds like your also violating the CC&R's from 2000 as well. We closed on the property in 2003. These 2004 CC&Rs were recorded with our title, which may be invalid. When we closed on the property, we were only provided with a "draft copy" of the CC&Rs. Never provided with the final CC&Rs and didn't know about the 2000 CC&Rs. Irene...it doesn't really matter what you were provided, you should have done a search on the property to find what was filed with it. You were provided something out of courtesy, it is your responsibility as a homeowner to find the correct ones.

BradP
(Kansas)

Posts:2491

11/17/2011 7:48 PM
Posted By IreneP on 11/17/2011 2:09 PM Brad, thank you for your response. If we are being singled out, ONLY US, as the Plaintiffs have stated to others, then that's harassment. Perhaps we should be filing a counter-claim against the Plaintiffs for their violations of the CC&Rs. Bottomline, when you bought your home, you agreed to the restrictions. If you are not in compliance and someone is suing you for that in my opinion you have no defense and will lose big. Yes, Brad, we understand this now. We never imagined homeowners could be so ruthless. But it's still considered harassment with the facts we have. I would disagree with harassment, if you had an active HOA and they were suing you then you have a legit beef. However, an individual homeowner has zero obligation to sue his/her neighbors equally as it pertains to this. If they want to just take you to court, that is their right. And if you are in violation you will lose. I really hope for your sake you can find a loophole as in my opinion your arguments hold zero water. but, I am not a lawyer so there is always hope!

TimB4
(Virginia)

Posts:3801

11/17/2011 7:55 PM
Irene, Since you said that Mr. McIntyre signed the new CC&Rs, this opens up even more information. Mr. McIntyre did create an Association - the NEEDLES CREEK HOMEOWNERS ASSOCIATION, and even incorporated it.. Therefore, you do have an Association. However, the Corporation itself was administratively dissolved, the Association still exists (it's just no longer incorporated). Per those records , two people are named to the Board. Ignore my previous advice and send letters to each of these two people (address in the document) requesting approval. My bet is that one or both of them will respond and say no problem. In this way, you will be complying with the section requiring approval. Worst case, you may have to do some digging, but technically - if the Association wasn't turned over to the membership - these are the people you need to get prior approval from. That's the good news. The Bad news, Since there is an Association, this also means that you don't need a neighborhood vote to revitalize it. People just need to get together with an attorney and get it out of admin dissolve.

MelissaP1
(Alabama)

Posts:2207

11/18/2011 3:59 AM
I think your getting a good amount of devil's advocate and positive direction in the advice being offered to you here. Yes, we all know as you know, that you are probably in violation. That's okay. It is a matter if those violations are enforceable in the eyes of the law. The court will decide that for you and your neighbors. I applaud your efforts in fighting this fight as it is a respectable one. That's saying alot coming from a former HOA president and ACC approver... Others may say you can't win, I say you can't win if you don't try. Watch some People's court shows. They sometimes offer up some good information there. Avoid the ones with "fake" judges. (Judge Joe Brown isn't a real judge but Judge Judy is...) Those shows focus on the emotion while other ones like People's focus on the real laws. I've taken some legal courses in college which have helped me over the years. It's just a good idea to find sources to educate yourself on the court system. If you have time, maybe see if you can sit in on a few court cases. Some courts are open courts that will allow you to sit in. Call your courthouse to see if that is possible. That way you may not feel so nervous when going to the court. It will also allow you to see how things operate and proper protocol. Wish you the best of luck. Think you can do this. Court is ALL about evidence. Just make sure you have it and in abundance. Copies of CC*R's, pictures, police reports, city reports, responses, laws of your city/county pertaining to your situation, and a good positive attitude goes a long ways. Keep us updated and keep fighting the fight!!!

Former HOA President

SteveM9
(Massachusetts)

Posts:1529

11/18/2011 4:14 AM
We closed on the property in 2003. These 2004 CC&Rs were recorded with our title, which may be invalid. Its possible, they may be invalid, it will take some digging to prove, but the ones filed in 2000 (which you are likely violating) are valid. When we closed on the property, we were only provided with a "draft copy" of the CC&Rs. Never provided with the final CC&Rs and didn't know about the 2000 CC&Rs. Doesn't really matter if you were provided copies or not. Many people who buy in HOA's are never provided copies of the CCR's or have no idea they are buying into a HOA. They still have to follow the rules too. Perspective........ Does your state give you copies of all the new laws it just passed? No. Are the police able to enforce the new laws? Yes. Are you legally obligated to follow the new laws? Yes.

IreneP
(Arizona)

Posts:21

11/18/2011 7:07 AM
Posted By MelissaP1 on 11/18/2011 3:59 AM It is a matter if those violations are enforceable in the eyes of the law. The court will decide that for you and your neighbors. I applaud your efforts in fighting this fight as it is a respectable one. That's saying alot coming from a former HOA president and ACC approver... You hit it on the head. It's all up to the Court. And yes, we have tons of evidence, pictures, police reports, videos, permits, letters, etc. And I've read the Rules of Procedure for AZ, ARS, and everything else I can research. The Internet has been a saviour. Others may say you can't win, I say you can't win if you don't try. You are right on the money with this statement. If you don't try, you're giving up. And that's hardly what we plan on doing. I've taken some legal courses in college which have helped me over the years. It's just a good idea to find sources to educate yourself on the court system. If you have time, maybe see if you can sit in on a few court cases. Some courts are open courts that will allow you to sit in. Call your courthouse to see if that is possible. That way you may not feel so nervous when going to the court. It will also allow you to see how things operate and proper protocol. This is not our first BBQ with the court system. We are well versed on what to expect. But we will probably sit in on Superior Court just to get us pumped up. Wish you the best of luck. Think you can do this. Court is ALL about evidence. Just make sure you have it and in abundance. Copies of CC*R's, pictures, police reports, city reports, responses, laws of your city/county pertaining to your situation, and a good positive attitude goes a long ways. Keep us updated and keep fighting the fight!!! Thank you Melissa.

JohnB26
(South Carolina)

Posts:579

11/18/2011 7:56 AM
here is the bottom line: 2000 or 2004 ccrs .... does not matter if you are in violation you will have to either: a) comply or b) lose your home this choice holds true regardless of opinion(s) best of luck PICK YOUR BATTLES WISELY

BradP
(Kansas)

Posts:2491

11/18/2011 9:23 AM
Irene...i truly do wish you the best in this endeavor, you have heard from a lot of very smart people on here. I hope it works out in the end for you.

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