Can we amend?

How can we legally amend the covenants for our Colorado based HOA?

This is the only reference to doing so in all of our original documents?

32. The Grantor reserves to itself the right to vary or modify the aforesaid
covenants, restrictions and easements, in cases of hardship or practical difficulty
where the basic intent and purposes of said covenants, restrictions and easements
would not be violated, subject to approval by the Cedar Mesa Ranches
Homeowner’s Association.

Be sure to give Notice (of the meeting and of the vote) to all members before the meeting, as outlined in your own rules.

The exact proposed amendment or new convenant should be stated in the Notice, with an explanation of the voting process i.e mail-in ballot, written ballot, use of proxy, etc. The president should appoint a Teller's Committee to oversee the voting process.

(Procedures for amendment is sometimes found in the Constitution or bylaws. Be sure you checked out these documents, too.)

Good luck!

Roger: Jack has asked if they can legally amend the covenants for their Colorado HOA based on the reference he has posted.

Jack posted..."The Grantor reserves to itself the right to vary or modify the aforesaid covenants, restrictions and easements, in cases of hardship or practical difficulty where the basic intent and purposes of said covenants, restrictions and easements would not be violated, subject to approval by the Cedar Mesa Ranches Homeowner’s Association."

However, I am puzzled as to what this clause #32. means--the 'Grantor' has the right to vary or modify in cases of hardship, etc., etc. provided the intent of the covenants, restrictions and easements are not violated, and are subject to approval....

- Who is the 'grantor'?
- What type of variation or modification (they do not use the word amendment) would be allowed provided it does not CHANGE the INTENT and PURPOSES of said covenants, etc.?
- Could this refer to a 'Rule' to clarify the covenant, restrictions, etc.?

Just asking you since you are Colorado-based and familiar with state law regarding changes to legal docs. Thanks for your input.

Paul:

The grantor is the Developer.

Okay, Dr. Gloria,
I have your first question as Dr. Jacks post of the amendment statement says that--"The grantor reserves to itself the right to vary or modify the aforesaid covenants, restrictions and easements, in cases of hardship or practical difficulty where the basic intent and purposes of said covenants, restrictions and easements would not be violated, subject to approval by the Cedar Creek Ranches HOA."

I realize that we do not have the entire document but this statement says that only the grantor (developer) can make changes to the covenants, etc?
Do we know if this is the statement before turnover? Maybe this is the point that we are missing? Because if they have had turnover, I read this as only the grantor can make changes ---(with membership approval). This is the part that is throwing me off base.
Donna

I posed this question because our covenants were previously amended by a simple majority vote In October of 2005. While reviewing the past minutes I found this.

" Annual Meeting
March 4, 2004 7:00 – 8:30 pm Summarization of Conference Call with Attorney Bill xxxxxx
The Covenants (paragraph 32) are unclear as to who is the “Grantor” and
Mr. xxxxxx suggested that this paragraph is a long way away from
identifying the procedures for amending the document. Hence, it is his
recommendation that we secure 100% membership approval to add an
amendment suggesting 2/3-3/4 membership approval for modification"

The Grantor is XXXXXXXX land. This is clear in that they owned the land and recorded the covenants against the land.

There is some question as to our being governed by the CCIOA.

In order for CCIOA to govern, either there must be common areas, or the covenants must require the lot owners to pay money for the upkeep or other costs of property within the subdivision. There are no common areas, and the covenants (the original covenants) only require lot owners to maintain that part of the roads that adjoin their property. There is no provision for payment of money to an association or any other entity for maintenance, insurance etc. as CCIOA requires. An assessment obligation ($150) did exist in the bylaws of the association. The bylaws are not recorded against the property and do not satisfy the CCIOA requirements.

Our BOD is currently in the process of drafting some additional covenants and attempting to amend some others. I have some real concerns about the legitimacy of the process.

Jack

Sorry, I meant Jack!!

Articles of incorporation were filed with the state of Colorado in July of 1998.

The association's documents are available on it's website. I am uncertain as to the appropriateness of providing that link.

My personal feelings are that the original covenants met their stated intent and were easily understood. They were not overburdened with legalese.

It is the intent of these covenants to protect and enhance the value, desirability and
attractiveness of said property, and to prevent the construction of improper or
unsuitable improvements. Restrictions are kept to a minimum while keeping in
constant focus the right of property owners to enjoy their property in attractive
surroundings free of nuisance undue noise, and danger. Further, it is intended that
the natural environment be disturbed as little as possible.

When they were last amended, by simple majority vote, this was done at the boards assurance of correctness. This was after the attorney's opinion stating otherwise.

The changes to the covenants allowed some blatantly non-compliant properties to suddenly become acceptable and attempted to make some clearly compliant properties unacceptable.
This presents the appearance of a conflict of interest and a breach of fiduciary duties on the part of the board.

Jack