Heirs' Inheritance rights of deed restrictions

Our situation: one co-owner of property signed over his rights to Homeowner's Association upon his death, including right to enforce deed restrictions he and other owner of property (not his spouse) had established for all parcels sold. Other owner never officially signed over his rights to the HOA. The lawyer of a resident of Association, in response to the HOA's denial of a proposed fence to be constructed, cites that due to the absence of clear transfer of rights from both original owners to HOA that the latter's ability to enforce the deed restrictions is voided. We were told only remedy is to secure a legal transfer of rights from every living heir of the deceased owner. Since the deceased owner passed away in the 1960s, this involves numerous individuals who live around the world, as the claim that these rights transfer in perpetuity until transferred.

The neighborhood risks a complete loss of the protections provided by the deed restrictions. Has anyone experienced a similar situation, or is familiar with a similar occurrence, and how it was resolved?

Your information seems to be coming from the attorney for a homeowner who was denied permission to build a fence. That lawyer may or may not be correct but a prudent person would seek an opinion from his own counsel. The homeowner's attorney is going to present a case most favorable to his client.

Your description of this situation is a little hazy so let me see if I understand it. Person A and Person B jointly owned and developed your subdivision and jointly recorded a declaration of covenants, conditions, and restrictions (CC&R's). Person A, now deceased, assigned his declarant's rights to the HOA. Person B, who is also now deceased, never assigned his rights. The lawyer for the homeowner asserts that until all the heirs of Person B assign their declarant's rights to the HOA that the HOA cannot enforce the CC&R's.

This is going to depend on the terms of the CC&R's. What rights did the declarants retain for themselves and what rights were granted to the HOA? These seem to vary greatly. It's quite possible that even if "B" never assigned his rights that it is not relevant to whether the HOA can deny permission to build a fence.

In my own case, for example, the declarant retained the right to add more land to the development and to have three times the votes for each unit he owned. Other than voting, which he has never done, the declarant has no control over the association and there would be little material change were he to assign his rights to the HOA. There are other situations, however, where the declarant retains the right to run the association until he chooses to turn control over to the association. For this reason, you should be seeking the advice of an attorney. It would also help if you can post the relevant passages of the CC&R's.

You might also wish to research whether the two declarant's, "A" and "B", had a formal partnership. If they did and "A" was the managing partner, he may have been legally authorized to assign the declarants' rights on behalf of the partnership.