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Subject: Community submitted HOA declaration filing without our consent
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DeborahK5
(Ohio)

Posts:6


10/09/2019 7:26 AM  
We live in a small community of 8 lots that did not have an HOA when we bought our home 6 years ago. We recently learned an HOA was submitted and filed without our consent or signatures. My understanding was that if one did not exist upon purchase of our home, we do not have to join the HOA. What should we do? Ohio is that state of residence.
SheliaH
(Indiana)

Posts:2701


10/09/2019 8:19 AM  
Get more information from whoever told you this - is he/she also a homeowner in your community and is trying to educate everyone on all this? If so, work with him/her to review the paperwork (get it from the agency where the paperwork was filed - start with the county recorder's office).

You should also dig up the paperwork you got at closing and review it (all of it) and see if there was mention of a HOA.
When you brought your home, the developer may have still been in charge and if it's now finished building out the community and filed the paperwork, it would appear you are in an HOA and will have to live with it unless you sell and move. Take all this stuff to your attorney to determine what your next steps should be.
DeborahK5
(Ohio)

Posts:6


10/09/2019 8:50 AM  
We were given a set of covenants that were not a formal HOA. A declaration was never filed during change over fro the developer (2004) to the residents. An attorney told us if one did not exist formally, we could not be forced to participate. Nothing has ever been recorded until this summer.
GenoS
(Florida)

Posts:3234


10/09/2019 10:54 AM  
Are there any restrictions written on your deed? A dozen HOAs may form all saying my lot is a part of their HOA, and even if that was totally legal the fact is if there's no deed restriction on my deed then their wishful thinking doesn't make me obligated to them for anything.
DeborahK5
(Ohio)

Posts:6


10/09/2019 11:10 AM  
There are no deed restrictions. Validated that this morning through the county auditor and our deed and originating documents.
GenoS
(Florida)

Posts:3234


10/09/2019 11:34 AM  
Good, because I may have misspoke earlier. Mr. Lipsutz opines that it doesn't entirely matter what's on your deed. What matters is that you search the county records to see if there has ever been a recorded declaration for the property. He says if there were none then you can't be forced to join an HOA. On the other hand, if there are covenants - even ones you didn't know about - then you are likely bound by them. Deeds can be inaccurate.
DeborahK5
(Ohio)

Posts:6


10/09/2019 12:02 PM  
Thank you. There have been no previous declarations filed as confirmed by the county auditor.
GenoS
(Florida)

Posts:3234


10/09/2019 12:40 PM  
Then you should be in good shape. I hope you have some neighbors who are also aware of what appears to be a "fast one" the pro-HOA people are trying to pull on you.
SteveM9
(Massachusetts)

Posts:3362


10/10/2019 6:24 AM  
Possibly sounds like a voluntary HOA. Maybe, maybe not.

There are legal languages on deeds that many folks who dont understand legal terms could miss, and not think they had an HOA. This may be on your deed, any previous deed or the original plans and deed from the original developer who subdivided the property, or even earlier.

Legal language might include terms such as: restrictive covenants, easements, restrictions, CCR, bylaws, encumbrances, subject to plans or development dated XX/XX/XX, encroachments, licenses

The list goes on and on.

Does the new HOA paperwork filed reference any older files you can research?
DeborahK5
(Ohio)

Posts:6


10/10/2019 7:01 AM  
The main body of all paperwork submitted is titled warranty deed, with a main body of Deed restrictions, and the stand alone sentence that reads 'the covenants and restrictions shall run with the land'. That is the language from the very first submission by the Developer and again when it transferred to the subdivision we live in. Other than those two submissions, the 4 couples who purchased here only received a copy of that...which in the country are typical zoning type restrictions, easements, encasements, etc.
JohnC46
(South Carolina)

Posts:8730


10/10/2019 7:05 AM  
Deb

So you do have Covenants and Restrictions thus this not make for you have an HOA?
TimB4
(Virginia)

Posts:16481


10/10/2019 7:10 AM  
My opinion is to contact an attorney to verify records at the courthouse and, if needed, send a letter to the Association explaining the legality of what was done. Could be the best $1,000 you spent.
DouglasK1
(Florida)

Posts:1453


10/10/2019 8:23 AM  
Posted By JohnC46 on 10/10/2019 7:05 AM
Deb

So you do have Covenants and Restrictions thus this not make for you have an HOA?


Restrictive covenants were common long before HOAs were so covenants do not necessarily create an association. My associations CCRs say:

2. ESTABLISHMENT OF HOMEOWNERS" ASSOCIATION OF XXX, INC.. There shall be established a homeowners'
association, hereinafter sometimes referred to as Association,
composed of record owners of each lot. The Association shall be
the XXX, INC., organized
and existing under the laws of the State of Florida. The
Association shall administer the operation and maintenance of the
common areas and property of XXX and other duties
hereafter provided for. The Association shall have all the
powers and duties set forth in this Declaration and in the
Articles of Incorporation and By-Laws and as granted by the laws
of the State of Florida to non-profit corporations.

They explicitly create an association and there is much more verbiage that refers to the association, it's role, assessments, etc.

If the covenants do not create or refer to an association, then I don't see how there could a mandatory association.

Escaped former treasurer and director of a self managed association.
SteveM9
(Massachusetts)

Posts:3362


10/10/2019 10:40 AM  


sounds to me you're in an HOA you're going to want to get copies of all that paperwork regarding the covenants and restrictions and run with the land.
DeborahK5
(Ohio)

Posts:6


10/10/2019 2:44 PM  
Thanks all for your comments and guidance. They have been very helpful.
MelissaP1
(Alabama)

Posts:8601


10/10/2019 4:03 PM  
Mmm... How to explain this... A HOA as I've said before is basically a "club". A club made up of the owners for the purpose of enforcing the rules, collect dues, and keep property looking good for potential buyers. Now you can have CC&R's for restrictions on your property/home. They should be on file at the court house. They are PUBLIC documents.

Now, to actually enforce these rules you need people. That is when a "Homeowner's Association" (HOA) is formed. It needs certain abilities to collect dues and protections like insurance. This is provided by it becoming incorporated. Hence the Articles of Incorporation on file at the STATE level. Again PUBLIC documents. The HOA can be incorporated as a non-profit (NOT charitable) or For-Profit. Most a are Non-profit set up to collect as much it spends on it's operational expenses.

The By-laws are created to be internal documents of the HOA to flesh-out the CC&R's. They may or may not be filed and NOT public. The by-laws help the people in the HOA enforce the rules in the CC&R's.

So you are still in a HOA if there are CC&R's but just means no people have formed a group to incorporate them. It can mean your neighbor can decide to enforce them via court system if they believe your in violation. Example: You build a shed that is too tall. Your neighbor can take you to court to make you tear down the shed or lower it. If there was a HOA formed, then it would be a decision ALL your neighbors can decide how to handle.

Former HOA President
GenoS
(Florida)

Posts:3234


10/10/2019 5:37 PM  
It's not a club and the Bylaws are certainly not for enforcing the rules.

DeborahK5, please be aware that some posters here aren't reliable sources of information.
TimB4
(Virginia)

Posts:16481


10/10/2019 5:43 PM  
Posted By MelissaP1 on 10/10/2019 4:03 PM
Mmm... How to explain this... A HOA as I've said before is basically a "club". A club made up of the owners for the purpose of enforcing the rules, collect dues, and keep property looking good for potential buyers. Now you can have CC&R's for restrictions on your property/home. They should be on file at the court house. They are PUBLIC documents.




Very wrong.

An HOA/COA is a company, created by the contract (deed restrictions) agreed to by all homeowners when they purchased.
Said purpose of the company is to maintain the common areas, maintain the common elements and provide any services (trash, etc.) outlined in the terms of the contract (Declaration).

In addition, the HOA/COA has the ability - but typically not the requirement (similar to every owner) to enforce the terms of the covenants.
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