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Subject: Creating a Mandatory HOA by ammending Covenants.
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GaryM15
(North Carolina)

Posts:33


11/05/2017 2:21 PM  
Can the covenants be amended to create a mandatory HOA with less than 100% agreement?

Our subdivision has a set of covenants, however they don't mention an HOA, assessments, or payments of any kind. We don't have any common property. The attorney tells us that we are not a mandatory HOA.

We can amend the covenants with a majority (less than 100%) vote. However, some of the home owners' want to include language that would create a mandatory HOA, with mandatory payment of assessments.

What can and can't be included in amended covenants?

Can the covenants be amended to create a mandatory HOA with less than 100% agreement?
TimB4
(Virginia)

Posts:14860


11/05/2017 2:24 PM  
Posted By GaryM15 on 11/05/2017 2:21 PM

Can the covenants be amended to create a mandatory HOA with less than 100% agreement?




Since laws vary by State, this is a question best answered by an attorney.

My best guess is that you will require 100% agreement.



Since you have no common areas, what do you use the assessments for?
GaryM15
(North Carolina)

Posts:33


11/05/2017 2:52 PM  
Posted By TimB4 on 11/05/2017 2:24 PM
Posted By GaryM15 on 11/05/2017 2:21 PM

Can the covenants be amended to create a mandatory HOA with less than 100% agreement?




Since laws vary by State, this is a question best answered by an attorney.

My best guess is that you will require 100% agreement.



Since you have no common areas, what do you use the assessments for?


We have some very nice entrance decorations. They are owned by four individual lot owners, two lots at each of two entrances. The present voluntary association collects contributions and hires a vendor to maintain them.
PaininyourA
(South Carolina)

Posts:119


11/05/2017 3:24 PM  
NO, you can not make a voluntary association into a mandatory one w/o 100%



Can MY association, by vote, make YOU a mandatory member ? Samo-Samo
TimB4
(Virginia)

Posts:14860


11/05/2017 4:07 PM  
Well, it's nice to maintain the entrance monuments.

However, worst case, as you pointed out, they are owned by others.
Therefore,the responsibility ultimately falls on the owner to maintain.
JohnC46
(South Carolina)

Posts:7010


11/05/2017 4:08 PM  
I agree with the 100% required to do so.
GaryM15
(North Carolina)

Posts:33


11/05/2017 4:11 PM  
Posted By PaininyourA on 11/05/2017 3:24 PM
NO, you can not make a voluntary association into a mandatory one w/o 100%


Can MY association, by vote, make YOU a mandatory member ? Samo-Samo


Not quite the same. I agreed to the covenants. The covenants can be changed to add restrictions concerning such things as lawn art. What else can they do?
TimB4
(Virginia)

Posts:14860


11/05/2017 4:12 PM  
Now, one way to obtain 100% agreement would be for the language to specify that membership is mandatory, current members are grandfathered but future owners will become mandatory members.

I've seen language to this in the past but was unable to locate it.
Your attorney would be the one to write it up anyway. Simply specify this desire.


This way, those who currently own are more likely to vote for the amendment as it doesn't affect them. It will only affect future owners of the home.
GaryM15
(North Carolina)

Posts:33


11/05/2017 4:15 PM  
Thanks to all responders. I think that 100% is the requirement. Does anyone have anything to backup the claim, other than it reasonably seems to be true?
GaryM15
(North Carolina)

Posts:33


11/05/2017 4:22 PM  
Posted By TimB4 on 11/05/2017 4:07 PM
Well, it's nice to maintain the entrance monuments.

However, worst case, as you pointed out, they are owned by others.
Therefore,the responsibility ultimately falls on the owner to maintain.


Technically, I agree. However the annual expense is about $10,000 total. They could elect to remove them. I guess that the covenants could be amended to require the four lot owners to maintain them in the present condition, but that may not hold up in court.
CarlJ2
(Texas)

Posts:165


11/05/2017 6:30 PM  
If the entrance decorations are owned by the individual lot owners you will then force those owners to give the property to the association?
LetA
(Nevada)

Posts:307


11/05/2017 9:10 PM  
Posted By GaryM15 on 11/05/2017 2:21 PM
Can the covenants be amended to create a mandatory HOA with less than 100% agreement?

Our subdivision has a set of covenants, however they don't mention an HOA, assessments, or payments of any kind. We don't have any common property. The attorney tells us that we are not a mandatory HOA.

We can amend the covenants with a majority (less than 100%) vote. However, some of the home owners' want to include language that would create a mandatory HOA, with mandatory payment of assessments.

What can and can't be included in amended covenants?

Can the covenants be amended to create a mandatory HOA with less than 100% agreement?






What do you want? Do you want those private property owners to turn over the "entrance" to the HOA?

That won't happen.
RogerB
(Colorado)

Posts:5047


11/06/2017 6:39 AM  
Posted By GaryM15 on 11/05/2017 2:21 PM
Can the covenants be amended to create a mandatory HOA with less than 100% agreement?

Our subdivision has a set of covenants, however they don't mention an HOA, assessments, or payments of any kind. We don't have any common property. The attorney tells us that we are not a mandatory HOA.

We can amend the covenants with a majority (less than 100%) vote. However, some of the home owners' want to include language that would create a mandatory HOA, with mandatory payment of assessments.

What can and can't be included in amended covenants?

Can the covenants be amended to create a mandatory HOA with less than 100% agreement?



Gary, In Colorado we manage two associations which are in the process of converting from voluntary to manditory. This was accomplished by approval of the percentage of homeowners required to approve the amendment as stated in the current CC&Rs. after the amended Covenants are filed with the County this provides for the property having a manditory assessment upon title transfer. The result is that new Buyers pay an assessment against the property and being Permanent members of the HOA; meanwhile current homeowners may voluntarily join the HOA by paying dues.
GaryM15
(North Carolina)

Posts:33


11/06/2017 6:53 AM  
Posted By CarlJ2 on 11/05/2017 6:30 PM
If the entrance decorations are owned by the individual lot owners you will then force those owners to give the property to the association?


No, That is not the intent at all. The discussion concerning the entrance decorations is off topic.

The topic is:

How far can the amendments to the covenants go, toward creating a mandatory HOA?

Is 100% agreement needed?

If so, how can I back up this claim?
FredS7
(Arizona)

Posts:784


11/06/2017 7:35 AM  
Posted By GaryM15 on 11/05/2017 4:15 PM
Thanks to all responders. I think that 100% is the requirement. Does anyone have anything to backup the claim, other than it reasonably seems to be true?




You have it backwards. You don't need to look for justification that 100% agreement is necessary. You need justification for imposing mandatory obligations with less than 100% agreement, on those who did not agree.

This is very unlikely in the US. We have no problem insisting on adherence to rules that we have agreed to (by buying property burdened by a mandatory HOA). But obligations we have not agreed to- this can only be done by the government under rather limited circumstances.
JohnC46
(South Carolina)

Posts:7010


11/06/2017 7:41 AM  
Gary

One law practice opinion in the below link but it can vary form satae to sate:

http://www.luederlaw.com/creating-a-mandatory-homeowners-association-in-your-existing-neighborhood/
JanetB2
(Colorado)

Posts:3642


11/06/2017 9:42 AM  
Posted By GaryM15 on 11/05/2017 4:15 PM
Thanks to all responders. I think that 100% is the requirement. Does anyone have anything to backup the claim, other than it reasonably seems to be true?


Because any such document will need to be attached to everyone's Property Title. You cannot attach a mandatory HOA to another person's Property Title without their expressed permission. This is why many states require a developer to already have an HOA in place PRIOR to selling any homes to consumers.

If you did not have my permission and attached any mandatory document to my Property Title ... I could have my Title Insurance sue you!!! Because my Title Insurance Company will have done a prior Title search before I previously purchased and will have noted in my insurance documents that there is no mandatory HOA attached.

Is that enough backup for you?
JanetB2
(Colorado)

Posts:3642


11/06/2017 10:17 AM  
Posted By RogerB on 11/06/2017 6:39 AM
Posted By GaryM15 on 11/05/2017 2:21 PM
Can the covenants be amended to create a mandatory HOA with less than 100% agreement?

Our subdivision has a set of covenants, however they don't mention an HOA, assessments, or payments of any kind. We don't have any common property. The attorney tells us that we are not a mandatory HOA.

We can amend the covenants with a majority (less than 100%) vote. However, some of the home owners' want to include language that would create a mandatory HOA, with mandatory payment of assessments.

What can and can't be included in amended covenants?

Can the covenants be amended to create a mandatory HOA with less than 100% agreement?



Gary, In Colorado we manage two associations which are in the process of converting from voluntary to manditory. This was accomplished by approval of the percentage of homeowners required to approve the amendment as stated in the current CC&Rs. after the amended Covenants are filed with the County this provides for the property having a manditory assessment upon title transfer. The result is that new Buyers pay an assessment against the property and being Permanent members of the HOA; meanwhile current homeowners may voluntarily join the HOA by paying dues.


I would fight that ... and I would predict a high probability of winning. You cannot change my Property Title to be anything different in the future without my expressed permission. I hope anyone filing any such documents has deep pockets when not yet collecting assessments to fight lawsuits.
GaryM15
(North Carolina)

Posts:33


11/06/2017 8:30 PM  
Posted By JanetB2 on 11/06/2017 9:42 AM
Posted By GaryM15 on 11/05/2017 4:15 PM
Thanks to all responders. I think that 100% is the requirement. Does anyone have anything to backup the claim, other than it reasonably seems to be true?


Because any such document will need to be attached to everyone's Property Title. You cannot attach a mandatory HOA to another person's Property Title without their expressed permission. This is why many states require a developer to already have an HOA in place PRIOR to selling any homes to consumers.

If you did not have my permission and attached any mandatory document to my Property Title ... I could have my Title Insurance sue you!!! Because my Title Insurance Company will have done a prior Title search before I previously purchased and will have noted in my insurance documents that there is no mandatory HOA attached.

Is that enough backup for you?


Almost! In this case, there is already a mandatory document filed with the title. It's the original covenants. They include the conditions that they can be amended with 51% agreement. The argument is, that since they can be amended to add or remove restrictions, then let's add the condition that assessments and membership is mandatory. What is my defense against such an argument?

Considering that most of the responders to this thread agree that this is a poor argument, and that 100% agreement is necessary, then I will encourage the attorney to advise against filing them with anything less than 100% acceptance.

Thanks to all everyone for your help.
TimB4
(Virginia)

Posts:14860


11/06/2017 9:00 PM  
Posted By GaryM15 on 11/06/2017 8:30 PM

Considering that most of the responders to this thread agree that this is a poor argument, and that 100% agreement is necessary, then I will encourage the attorney to advise against filing them with anything less than 100% acceptance.




That's not what I would do.

I would seek a legal opinion.

The question to ask the attorney is:

What must be done to change our Association from voluntary to mandatory and, will this require 100% agreement or something less?


The question NOT to ask the attorney (because it doesn't answer the larger question above):
What must be done to amend the covenants?
JanetB2
(Colorado)

Posts:3642


11/06/2017 9:34 PM  
Posted By GaryM15 on 11/06/2017 8:30 PM

Almost! In this case, there is already a mandatory document filed with the title. It's the original covenants. They include the conditions that they can be amended with 51% agreement. The argument is, that since they can be amended to add or remove restrictions, then let's add the condition that assessments and membership is mandatory. What is my defense against such an argument?


Potentially you are confusing "Land Use Restriction" Covenants with "Home Owner Association" Covenants.

Does the coventants filed with the title authorize the creation of a Home Owner's Association? Both sets of documents can be amended ... however, you cannot attach documents to someone's Property Title after they have purchased and REQUIRE them to pay $$$ ... when that was not fully disclosed to them BEFORE they purchased their property. I'm not an attorney, but that would be starting to cross the line and engaging in real estate fraud.

That is why if you want to make mandatory after people have already received disclosures and purchased ... you need to obtain 100% agreement.

Here is an article which might help you understand: http://condohoalaw.blogspot.com/2013/12/mandatory-versus-voluntary-are-you.html

Another example would be someone who told their realtor they do not want and will not purchase in an HOA. The realtor finds and they purchase a home in your subdivision which has been advertised and sold as not being within an HOA and which the buyer wanted because they see that many people are asking the same and feel the property would resell more quickly when they again get transferred. The point is ... they purchased under certain expectations and what was fully disclosed to them ... therefore, they have their right to resell under the same expectations UNLESS they agree in writing otherwise.





JohnC46
(South Carolina)

Posts:7010


11/07/2017 4:56 AM  
Posted By JanetB2 on 11/06/2017 9:34 PM
Posted By GaryM15 on 11/06/2017 8:30 PM

Almost! In this case, there is already a mandatory document filed with the title. It's the original covenants. They include the conditions that they can be amended with 51% agreement. The argument is, that since they can be amended to add or remove restrictions, then let's add the condition that assessments and membership is mandatory. What is my defense against such an argument?


Potentially you are confusing "Land Use Restriction" Covenants with "Home Owner Association" Covenants.

Does the coventants filed with the title authorize the creation of a Home Owner's Association? Both sets of documents can be amended ... however, you cannot attach documents to someone's Property Title after they have purchased and REQUIRE them to pay $$$ ... when that was not fully disclosed to them BEFORE they purchased their property. I'm not an attorney, but that would be starting to cross the line and engaging in real estate fraud.

That is why if you want to make mandatory after people have already received disclosures and purchased ... you need to obtain 100% agreement.

Here is an article which might help you understand: http://condohoalaw.blogspot.com/2013/12/mandatory-versus-voluntary-are-you.html

Another example would be someone who told their realtor they do not want and will not purchase in an HOA. The realtor finds and they purchase a home in your subdivision which has been advertised and sold as not being within an HOA and which the buyer wanted because they see that many people are asking the same and feel the property would resell more quickly when they again get transferred. The point is ... they purchased under certain expectations and what was fully disclosed to them ... therefore, they have their right to resell under the same expectations UNLESS they agree in writing otherwise.





Are you saying that if they were lied to or misinformed, they have the right to pass along such lies and misinformation?
RogerB
(Colorado)

Posts:5047


11/07/2017 6:38 AM  
I agree with JanetB2 who stated "You cannot change my Property Title to be anything different in the future without my expressed permission."

However, that is not the case for the two associations we manage which are in the process of coverting from Voluntary to Manditory. In these two associations the Covenants were amended (by 2/3 approval of all homeowners). After the amended Covenants were filed with the County, whenever a title transfer occurs the Buyer (new owner) has a manditory property ASSESSMENT. The owners of properties owned prior to the time of amending the Covenants may voluntarily join the HOA by paying yearly personal DUES. For each association the amended Covenants were approved by and drafted by the association's highly competent HOA attorney.

In case an ignorant realtor does not advise a Buyer that they will have a manditory assessment upon purchase from a Seller who is Voluntary, or if the title company does not make the Buyer aware of this, either or both may be liable. As the management company, we provide a status letter to the title company prior to each title transfer which clearly and in bold type makes them aware of this conversion. We also provide all of the Governing Documents to the Seller or their Agent which they are required by CCIOA to provide to a potential Buyer.

GaryM15
(North Carolina)

Posts:33


11/07/2017 6:51 AM  
Posted By TimB4 on 11/06/2017 9:00 PM
Posted By GaryM15 on 11/06/2017 8:30 PM

Considering that most of the responders to this thread agree that this is a poor argument, and that 100% agreement is necessary, then I will encourage the attorney to advise against filing them with anything less than 100% acceptance.




That's not what I would do.

I would seek a legal opinion.

The question to ask the attorney is:

What must be done to change our Association from voluntary to mandatory and, will this require 100% agreement or something less?


The question NOT to ask the attorney (because it doesn't answer the larger question above):
What must be done to amend the covenants?


Tim, That sounds like excellent advice. Thanks.
GaryM15
(North Carolina)

Posts:33


11/07/2017 6:51 AM  
Posted By TimB4 on 11/06/2017 9:00 PM
Posted By GaryM15 on 11/06/2017 8:30 PM

Considering that most of the responders to this thread agree that this is a poor argument, and that 100% agreement is necessary, then I will encourage the attorney to advise against filing them with anything less than 100% acceptance.




That's not what I would do.

I would seek a legal opinion.

The question to ask the attorney is:

What must be done to change our Association from voluntary to mandatory and, will this require 100% agreement or something less?


The question NOT to ask the attorney (because it doesn't answer the larger question above):
What must be done to amend the covenants?


Tim, That sounds like excellent advice. Thanks.
GaryM15
(North Carolina)

Posts:33


11/07/2017 7:05 AM  
Posted By JanetB2 on 11/06/2017 9:34 PM
Posted By GaryM15 on 11/06/2017 8:30 PM

Almost! In this case, there is already a mandatory document filed with the title. It's the original covenants. They include the conditions that they can be amended with 51% agreement. The argument is, that since they can be amended to add or remove restrictions, then let's add the condition that assessments and membership is mandatory. What is my defense against such an argument?


Potentially you are confusing "Land Use Restriction" Covenants with "Home Owner Association" Covenants.

Does the coventants filed with the title authorize the creation of a Home Owner's Association? Both sets of documents can be amended ... however, you cannot attach documents to someone's Property Title after they have purchased and REQUIRE them to pay $$$ ... when that was not fully disclosed to them BEFORE they purchased their property. I'm not an attorney, but that would be starting to cross the line and engaging in real estate fraud.

That is why if you want to make mandatory after people have already received disclosures and purchased ... you need to obtain 100% agreement.

Here is an article which might help you understand: http://condohoalaw.blogspot.com/2013/12/mandatory-versus-voluntary-are-you.html

Another example would be someone who told their realtor they do not want and will not purchase in an HOA. The realtor finds and they purchase a home in your subdivision which has been advertised and sold as not being within an HOA and which the buyer wanted because they see that many people are asking the same and feel the property would resell more quickly when they again get transferred. The point is ... they purchased under certain expectations and what was fully disclosed to them ... therefore, they have their right to resell under the same expectations UNLESS they agree in writing otherwise.



Janet,

We have only one set of covenants. They address land use and not anything concerning a HOA or any payments.

We are together in our thinking and our objectives. I trying to learn from you what I can do to convince the others that we need 100%.

I think that your answer of "you cannot attach documents to someone's Property Title after they have purchased and REQUIRE them to pay $$$" is the key. The covenants can be changed to require something like keeping your garage door closed, but not to require payment of any kind.

Gary

JanetB2
(Colorado)

Posts:3642


11/07/2017 9:51 AM  
Posted By RogerB on 11/07/2017 6:38 AM
I agree with JanetB2 who stated "You cannot change my Property Title to be anything different in the future without my expressed permission."

Glad you agree ... However, that is exactly what happened with the statement below ... the Property Titles were "encumbered" and changed to something different in the future without the 1/3 owner's who did not agree!!! Their property has been "encumbered" with a future mandatory FEE / ASSESSMENT without their LEGAL consent ... it is "encumbered" and can affect the future sale of their property.

However, that is not the case for the two associations we manage which are in the process of coverting from Voluntary to Manditory. In these two associations the Covenants were amended (by 2/3 approval of all homeowners). After the amended Covenants were filed with the County, whenever a title transfer occurs the Buyer (new owner) has a manditory property ASSESSMENT. The owners of properties owned prior to the time of amending the Covenants may voluntarily join the HOA by paying yearly personal DUES. For each association the amended Covenants were approved by and drafted by the association's highly competent HOA attorney.

Well ... I had quite a few supposedly highly competent attorneys tell me a developer could change documents even though they did not reserve the right to change ... and guess what ... they were wrong.


That is why stated I would fight if happened to me. I would first send notice for the illegally filed document to be removed from my property title per:

38-35-109. Instrument may be recorded - validity of unrecorded instruments - liability for fraudulent documents

(3) Any person who offers to have recorded or filed in the office of the county clerk and recorder any document purporting to convey, encumber, create a lien against, or otherwise affect the title to real property, knowing or having a reason to know that such document is forged or groundless, contains a material misstatement or false claim, or is otherwise invalid, shall be liable to the owner of such real property for the sum of not less than one thousand dollars or for actual damages caused thereby, whichever is greater, together with reasonable attorney fees. Any grantee or other person purportedly benefited by a recorded document that purports to convey, encumber, create a lien against, or otherwise affect the title to real property and is forged or groundless, contains a material misstatement or false claim, or is otherwise invalid who willfully refuses to release such document of record upon request of the owner of the real property affected shall be liable to such owner for the damages and attorney fees provided for in this subsection (3).

Then if they "willfully refuse" to remove the document ... I would file charges with my local DA and the State AG for a number of items such as Theft of Contract and:

18-5-114. Offering a false instrument for recording

(1) A person commits offering a false instrument for recording in the first degree if, knowing that a written instrument relating to or affecting real or personal property or directly affecting contractual relationships contains a material false statement or material false information, and with intent to defraud, he presents or offers it to a public office or a public employee, with the knowledge or belief that it will be registered, filed, or recorded or become a part of the records of that public office or public employee.

Then I would have my attorney file a lawsuit against every individual and entity who participated in falsely "encumbering" my property. And why do I think I have a high probability of winning? Because these are items we could have gone after our past developers for also and because they engaged in similar illegal activity in more than one instance could have also included Criminal Racketeering against them. I also had discussed this with the AG office, but in our situation because our attorney filed a document behind our backs it limited criminal charge recourse ... we only had civil option.
RogerB
(Colorado)

Posts:5047


11/09/2017 8:15 AM  
JanetB2,
I would suggest legal advice be obtained when an association choses to try to convert from voluntary to manditory. Your post seems to imply that (a)a Covenant amendment legally approved and filed without a challenge are not a legal document; and (b) that such a change affects the title of a current homeowner. Really?

Question: does conversion from voluntary dues to manditory assessment
(a) encumber (by limiting Buyers to those who do not want a manditory assessment); or
(b) increase the potential Buyers; the selling price; and the quality of living?

I have owned properties in both Voluntary and Manditory communities and have found that manditory assessments are needed to provide the funds necessary to enforce violations of restrictions. It is my experience that a manditory common interest community enhances property values and quality of living and is desired by all Sellers and many Buyers.
JanetB2
(Colorado)

Posts:3642


11/09/2017 10:00 AM  
Posted By RogerB on 11/09/2017 8:15 AM
JanetB2,
I would suggest legal advice be obtained when an association choses to try to convert from voluntary to manditory. Your post seems to imply that (a)a Covenant amendment legally approved and filed without a challenge are not a legal document; and (b) that such a change affects the title of a current homeowner. Really? YES ... Because there would now be a "security interest" against my current Property Title which DID NOT exist before filed with the County Records without my required PERMISSION ... even if will be assumed by a future owner. My property title would then be "clouded" without my expressed permission.


Question: does conversion from voluntary dues to manditory assessment
(a) encumber (by limiting Buyers to those who do not want a manditory assessment); or
(b) increase the potential Buyers; the selling price; and the quality of living?

I have owned properties in both Voluntary and Manditory communities and have found that manditory assessments are needed to provide the funds necessary to enforce violations of restrictions. It is my experience that a manditory common interest community enhances property values and quality of living and is desired by all Sellers and many Buyers.


The definition of a "Common Interest Community" under our State Law notes:

38-33.3-103. Definitions

(8) "Common interest community" means real estate described in a declaration with respect to which a person, by virtue of such person's ownership of a unit, is obligated to pay for real estate taxes, insurance premiums, maintenance, or improvement of other real estate described in a declaration. Ownership of a unit does not include holding a leasehold interest in a unit of less than forty years, including renewal options. The period of the leasehold interest, including renewal options, is measured from the date the initial term commences.

Do those communities have OTHER real estate described in the Declaration for which they are "obligated" to pay for items such as maintenance and improvements? Simply wanting to collect money without meeting certain requirements does not make them Common Interest Communities.

Furthermore:

38-33.3-301. Organization of unit owners' association

A unit owners' association shall be organized no later than the date the first unit in the common interest community is conveyed to a purchaser. The membership ... et al.

It does not state "SHALL be organized after I purchased my property without my EXPRESSED permission" by a pack of yahoo's who think they have any such right!!!
DouglasM6
(Arizona)

Posts:438


11/09/2017 2:49 PM  
Janet- If the covenants are changed in a legal manner with the required votes, then it HAS been done with your permission. You agreed to the covenants and restrictions when you purchased. In essence, and in the OP's case, agreed that if at some time in the future 51% of of the members vote to make it mandatory, it will become mandatory. However, the change MAY not effect current owners if written so. The verbiage of the restrictions attached to your title says it can be changed.

I strongly suggest a lawyer to the OP. The way I see it, 51% is all it's going to take to make it a mandatory HOA.
DouglasM6
(Arizona)

Posts:438


11/09/2017 2:53 PM  
You seem to think that the covenants must remain exactly as they were when you purchased, unless you agree to the change. Wrong. Welcome to the dark side of HOA living! Where others can/will dictate how you live!!

With the proper percentage of affirmative votes, that is outlined in the CC&R's, anything can be changed!!
JanetB2
(Colorado)

Posts:3642


11/09/2017 6:56 PM  
Posted By DouglasM6 on 11/09/2017 2:49 PM
Janet- If the covenants are changed in a legal manner with the required votes, then it HAS been done with your permission. You agreed to the covenants and restrictions when you purchased. In essence, and in the OP's case, agreed that if at some time in the future 51% of of the members vote to make it mandatory, it will become mandatory. However, the change MAY not effect current owners if written so. The verbiage of the restrictions attached to your title says it can be changed.

I strongly suggest a lawyer to the OP. The way I see it, 51% is all it's going to take to make it a mandatory HOA.


Douglas ... You need to go back and read all the posts ... because I would contend NOT changed in a legal manner as would be required under CO State Statutes. Therefore, would not have been done with my permission. I contend cannot be changed to MANDATORY without 100% of owner's agreement. Also, under my state to fall under CCIOA (Colorado Common Interest Community Ownership Act) per the definition the HOA would need to have "other property" to pay assessments to maintain and improve. Also, my State Law requires such an association to be in place BEFORE I purchase any property ... NOT after I purchase and placed without my LEGAL APPROVAL.

YOU and others seem to have the attitude that if a lawyer says it is OK that it is written in stone. Well guess what ... you do no always have the sharpest or brightest crayons in that box of lawyers. In my last HOA the Developer when we came after them before filing in Court stated ... "Our lawyer said we could do this." My response was just because you did not hire the smartest attorney does not make it my family and neighbors problem. They even when we took them to court complained to the court ... But, but ... Waaaah ... our Attorney said we could make these changes ... the Court told them the same thing. Just because your attorney stated it was OK does not make it right ... and does not eliminate the fact that any owner can disagree and file a case in a Court of Law.

In some instances you can have owners who have a "private contract" or in essence a "Land Use Agreement" and which is NOT an HOA. Again, you need to read the State Statute sections I posted and what they state.
JanetB2
(Colorado)

Posts:3642


11/09/2017 7:04 PM  
Posted By DouglasM6 on 11/09/2017 2:53 PM
You seem to think that the covenants must remain exactly as they were when you purchased, unless you agree to the change. Wrong. Welcome to the dark side of HOA living! Where others can/will dictate how you live!!

With the proper percentage of affirmative votes, that is outlined in the CC&R's, anything can be changed!!


NOPE ... Covenants can be changed. However, there is a BIG difference between VOLUNTARY and MANDATORY. Or in my state between "PRIVATE Land Use Contract" and "MANDATORY Common Interest Community". RIGHT!!! Welcome to the bright side of HOA living where I know my rights and where others who might choose to violate the laws CANNOT dictate how I live!!! Been there and done that .
RogerB
(Colorado)

Posts:5047


11/10/2017 7:39 AM  
Posted By DouglasM6 on 11/09/2017 2:49 PM
Janet- If the covenants are changed in a legal manner with the required votes, then it HAS been done with your permission. You agreed to the covenants and restrictions when you purchased. In essence, and in the OP's case, agreed that if at some time in the future 51% of of the members vote to make it mandatory, it will become mandatory. However, the change MAY not effect current owners if written so. The verbiage of the restrictions attached to your title says it can be changed.

I strongly suggest a lawyer to the OP. The way I see it, 51% is all it's going to take to make it a mandatory HOA.



I agree. However, to clarify, only Buyers after the amendment is filed have an assessment. The current owners do not have an assessment, that would encumber their title. I disagree with thoughts posted by Janet. However, I know of not legal case which clarifies in Colorado related to conversion of voluntary to manditory. There was a case concerning assessments for an association being a common interest ownership where there is no common area. As I recall the Court decided for the HOA since they do enforce the Covenant restrictions.
DouglasM6
(Arizona)

Posts:438


11/10/2017 2:42 PM  
Posted By RogerB on 11/10/2017 7:39 AM
Posted By DouglasM6 on 11/09/2017 2:49 PM
Janet- If the covenants are changed in a legal manner with the required votes, then it HAS been done with your permission. You agreed to the covenants and restrictions when you purchased. In essence, and in the OP's case, agreed that if at some time in the future 51% of of the members vote to make it mandatory, it will become mandatory. However, the change MAY not effect current owners if written so. The verbiage of the restrictions attached to your title says it can be changed.

I strongly suggest a lawyer to the OP. The way I see it, 51% is all it's going to take to make it a mandatory HOA.



I agree. However, to clarify, only Buyers after the amendment is filed have an assessment. The current owners do not have an assessment, that would encumber their title. I disagree with thoughts posted by Janet. However, I know of not legal case which clarifies in Colorado related to conversion of voluntary to manditory. There was a case concerning assessments for an association being a common interest ownership where there is no common area. As I recall the Court decided for the HOA since they do enforce the Covenant restrictions.




If the amendment states that "all current owners as well as all owners going forward" shall have the assessment, and it passes and is files as such, would that change it? Or is it State Law that prohibits the current owners from being assessed?
RogerB
(Colorado)

Posts:5047


11/10/2017 6:26 PM  
No Douglas. The current owners should be assessed, that would encumber their title. Please check out the conditions required as stated in my first post on this subject.
JanetB2
(Colorado)

Posts:3642


11/11/2017 6:59 PM  
Posted By RogerB on 11/10/2017 7:39 AM
Posted By DouglasM6 on 11/09/2017 2:49 PM
Janet- If the covenants are changed in a legal manner with the required votes, then it HAS been done with your permission. You agreed to the covenants and restrictions when you purchased. In essence, and in the OP's case, agreed that if at some time in the future 51% of of the members vote to make it mandatory, it will become mandatory. However, the change MAY not effect current owners if written so. The verbiage of the restrictions attached to your title says it can be changed.

I strongly suggest a lawyer to the OP. The way I see it, 51% is all it's going to take to make it a mandatory HOA.


I agree. However, to clarify, only Buyers after the amendment is filed have an assessment. The current owners do not have an assessment, that would encumber their title. I disagree with thoughts posted by Janet. However, I know of not legal case which clarifies in Colorado related to conversion of voluntary to manditory. There was a case concerning assessments for an association being a common interest ownership where there is no common area. As I recall the Court decided for the HOA since they do enforce the Covenant restrictions.


There is one case I am aware of: http://caselaw.findlaw.com/co-supreme-court/1183127.html

However, the HOA won because the Plat showed that there was "Common Area" which the HOA was required to maintain. Therefore, while initially was voluntary they could Amend to make it mandatory in order to maintain the Common Area Property. It went back and forth with local court siding with HOA, then next level Court siding with Owner, then finally the Colorado Supreme Court siding with the HOA. Again, was mainly because they had Common Area Property falling under the definition of Colorado Common Interest Community.
RogerB
(Colorado)

Posts:5047


11/12/2017 6:10 AM  
Posted By RogerB on 11/10/2017 6:26 PM
No Douglas. The current owners should be assessed, that would encumber their title. Please check out the conditions required as stated in my first post on this subject.



Sorry, it should have been posted as "current owners should NOT be assessed"
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Forums > Homeowner Association > HOA Discussions > Creating a Mandatory HOA by ammending Covenants.



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