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TinaC
(Florida)

Posts:2

06/25/2006 8:23 PM
this homeowners ass.has been telling us for years that the bylaws and covenants are filed down town and they are law.. well we found out it was not true so that makes them not law..they are not filed at the clerk of court or anywhere elae..so that means we can have a pool,the covenants say we can't but there not filed and are not law.. would this be right because i think it would,they will not open the pool that we do pay for so i can have my own tinac

BradP
(Kansas)

Posts:1742

06/26/2006 6:19 AM
Tina: I would keep checking, ours are filed with the Register of Deeds in our county.

PaulM
(Pennsylvania)

Posts:1347

06/26/2006 6:49 AM
Tina, on bylaws & covenants, the legal/formal documents are filed by the developer, not the assn. They must be filed prior to any sale of units. Go to the source--your copy of Declaration & Bylaws. Look in the front section, you no doubt will find the date the 'declaration' was made and filed (according to the provisions of your (State) Planned Community Act)with the Recorder of Deeds within your county. Further, it sounds like you do have an erected pool but 'they will not open the pool'. Has the pool ever been opened or maintained in the history of your community? Might the present problem be that there are not enough funds to cover the mega-expenses to run a pool? If so, this is a budget problem not a covenant problem. Check with your property mgr and also your copy of the approved budget. PaulM

GeraldT1

Posts:0

06/26/2006 7:39 AM
TinaC - Once you find your by-laws, which must be on file with state officials, perhaps with your county office of the register, or with your closing documents, look for sections which talk about the powers and duties of the boards for the maintenance responsibilities of the associations of the Common Property. Was a pool part of your public offerring statment/governing documents? Probably. Typically the Boards are responsible to maintain the Property in accordance with the public offerring statement. Therefore, there must be a compelling reason why the pool can not be opened. You are correct, the gov. docs. must be filed in order to be law, the same with amendments to the by-laws that must be on file with the office they were originally recorded. Regarding your last statement, just because the association does not offer the pool service, does not mean you can install a pool. Your ability to do so would depend upon your town ordinances, and the association's policy on private installation of pools. GeraldT1

BrianB
(California)

Posts:1748

06/26/2006 4:23 PM
ANd just so we are all clear: CC&R's are contractual obligations. they are not, and never will be "laws" within the legal, state/federal statute system. I only add that because i have had angry folks threaten to call the police to enforce "the laws" of our organization, because they misunderstand... they have no legal enforcement by the state in that manner.

LisaS
(Illinois)

Posts:339

06/27/2006 1:29 PM
In our state, we can add 'bylaws, guidelines, and rules' in addition to our covenants. So long as they do not replace or remove any currently written rule they do not need to be filed in order to be enforceable. We have single family homes. Scary, huh?

SwanB
(Washington)

Posts:194

06/28/2006 8:35 AM
A suggestion for you, TinaC, but a question first: Does your HOA have nonprofit status with the State? You can check this by going online to the Secretary of State's website and running a search for your association's name. I have filed nonprofit status for a number of community organizations, both at the state level and federally, and the bylaws were a required document for each organization I filed.

NikkiT
(Texas)

Posts:30

07/26/2006 7:55 PM
I,too, wouldlike to know exactly where the "Bylaw Document of the Association" is to be recorded. I have spoken with the Texas Secretary of State regarding this for our Association: ELPOA. She said that her office only has to record the Article of Incorporation and any amendment to the Article of Incorporation. she also said that her office has NEVER recorded the Associaton Bylaws only the Associaton's intent to do business (which is in the Article of Incorporaton) I have checked with our County Clerk regarding recording of Land Deeds and all that pertain to the Deeds. She said that only Restrictions and Covenents are REQUIRED to be recorded along with the Land Deeds and surveys. However, that said, our Board of Directors have HAD RECORDED ASSOCIATION BYLAWS that were not voted in by the Association membership to give the appearance that they are legal. ASSOCIATION BYLAWS and DEED RESTRICTIONS AND COVENANTS ARE TWO DIFFERENT SEPARATE DOCUMENTS!!! Deed Restrictions run with the land while Association Bylaws govern the members of that perticular association (which may not include all property owners). In the case of our Deed Restrictions: membership in the Association is not manditory and the Association Bylaws state: property ownership is manditory.

MarloM
(Texas)

Posts:17

07/27/2006 8:13 AM
I found a search utility for non-profits. http://www.melissadata.com/lookups/np.asp

RogerB
(Colorado)

Posts:3725

07/27/2006 8:25 AM
In Colorado, the Declaration is filed in the County(s) in which the HOA resides; the Articles of Incorporation are filed with the Secretary of State; and the By-laws need onlyh be filed in the HOA.

Roger Borcherding Official HOATalk.com Sponsor DARCO Property Management (Colorado) (303) 925-0150 *See legal notice below (end of page) or go to www.hoatalk.com/legal

NikkiT
(Texas)

Posts:30

07/30/2006 7:17 PM
Hi again Roger, I have spoken with an attorney versed in Texas property laws and and a person that runs a company that does Title Searchs for northeast Texas. They both agree with you: the Covenants/Restrictions and Declarations are to be filed in the county where the HOA reside, the Articles of Incorporation and any amendments to that document are to be filed with the Secretary of State (Texas), and the Bylaws are to be in the office of the HOA. The CEO of the Title Search Co did make the observation that although it is NOT specifically stated as being required in Texas Corp Law that does not mean that some burocracy somewhere does not have a requirement buried within its rules that do require the Bylaw Document to be filed - somewhere. He said that because this 'law' may not be spelled out in the Texas Statues governing Corporations does not mean it would not be written down 'somewhere.' Seems it could be made simpler than all this. Thanks Roger. Sincerely, Nikki T.

NikkiT
(Texas)

Posts:30

07/30/2006 7:34 PM
Dear Tina C. The Bylaws of the HOA you live in are infact legal Rules and Regulations for your Association. You agreed to follow these rules when you joined that Association. The Bylaws are a SEPARATE DOCUMENT from the Deed Restrictions and Covenants/Declaration. These Covenants run with the land and do need to be filed in the County where the HOA resides. I think of these "Restrictions" like the zoning ordances in a city. They govern the use of the land and such. They rule the land regardless of the HOA or group that rules the Membership. The Bylaws would give specific rules to govern the behavior of the Members and Board of Directors, for meetings, committees and such. The Bylaw document is considered an "organizational" document - pertaining to "how the Association is regulated" and should be "filed" in the office of the Association. Perhaps what the Association meant when they said it is filed "downtown" is that the Deed Restrictions and Covenants were on file? These contain additional rules you will need to follow. The Association office should give you a copy of the Bylaw document so you know what is required of you as a Member. Hope this helps. Sincerely, NikkiT

HeatherG
(California)

Posts:2

08/02/2006 1:29 PM
I have a separate question regarding the CC&R'S. If homeowners are in breach of a "restriction", how does one proceed in getting the HOA to enforce said restriction? My HOA does not respond to anything in writing from myself or my Atttorney. My Attorney has been sent several of the HOA's Attorney letters and we can NOT get any help from anyone. We are being ignored and homeowners are breaking the rules left and right. What can we do, if they won;t do their duties?

RogerB
(Colorado)

Posts:3725

08/02/2006 2:47 PM
What can we do, if they won;t do their duties? Remove them from office Heather.

Roger Borcherding Official HOATalk.com Sponsor DARCO Property Management (Colorado) (303) 925-0150 *See legal notice below (end of page) or go to www.hoatalk.com/legal

NikkiT
(Texas)

Posts:30

08/13/2006 10:05 PM
LOTS OF LUCK! Getting rid of any Board of Direcor(s) by election is not that easy. In fact, this year the HOA I am in has announced there will be NO ELECTION! There would have been three seats to be filled and "bless their little pea-picking hearts" two of the Directors (who were to be replaced, by the way) saw in their magnamimous hearts to "voluntarily" keep their seats and gee whiz, only one resume (a friend no less) was "received" - - therefore, no election needed - - we proceed as usual. The Bylaw document I consider the legal one and allowed our Association to be a "member managed association" was arbitrarily changed by the vote of the 1998 Board of Directors. Not only was it put in place, it was made "retroactive" two years! The Board's Bylaws changed the section covering elections from all 5 seats being changed every year to: alternate terms (2 seats to be changed at a one year term, and 3 seats at a two year term). Can the Board be 'reasoned with?" Oh yes, they smile and listen. Then walk away as if nothing you said penetrated. Yes, in our country, anyone can take anyone else to court. But in a HOA, who wins? Okay, say I use my money (needed for other things - like food, gas) to hire an attorney; we go to court (I do have a lot of documentation proving the legal Bylaws are not the Board's Bylaws). Okay, so I "win" and the court orders our HOA back to the LEGAL 1990 Bylaws. It would be a very hollow victory indeed. Both Bylaw documents state for the Association to pick up ALL costs involved for the action of any Director being taken to court. So my victory incurs the wrath and ill will not only of the Directors but also of my neighbors because "their expendature comes out of the Association - Member's pockets." Yes, I have protested, both verballly and in writting on numerous occasions since 1998, but to no avail. In disgust, people have pulled back into homes one by one and no longer come to the meetings. Why should they come? For what purpose? Yes the Board 'takes all input' but that is as far as it goes. Nothing changes: we are repeatedly told "we're broke" but this is what we have done! There is no point in trying to get the to listen to reason as their minds have already been made, so why keep beating your head against their brick wall? It is now very difficult to get even the 14 memberships required for a quorum. The Board now includes THEIR PRESENCE at the meeting not only to make a quorum but to "vote" on anything, which is a hoot! Should the "vote" at a Property Owners Meeting go against the desire of the Board, they simply disregard the membership vote! Question: is there anything in place, other than personally taking on the financial obligation of Court arbritration? At least in criminal court when one is robbed or held at knife point we have the resource of the District Attorney. Oh well. Good Luck to you. I am tired of being way out on the proverbal limb. Before I found this web sight, I felt even more alone. It is good to discuss problems and get a fresh opinion. Nikki T.

JoelM
(Ohio)

Posts:10

08/15/2006 12:36 PM
I do not know what state you are in, but you should have received the governing documents at closing. I am not sure how you would choose to move into a community association without having read the governing documents first? You may ask your realtor or escrow company where the documents were. I believe in California you have to initial the bottom of each page indicating you read the documents.

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