Covenant Change?

Started by JamesH6 • 11 replies • 2566 views

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JamesH6 (Georgia)
Posts: 3

Posted:

The developer is about to turn over the HO Assn to the new board. The present covenants are full of "Developer this and that". Suspect we need new covenants stripping out all reference to "Developer". Do we simply do that or can we re-write all of it to thus develop a new set of covenants? Can you direct me to a sample covenant site?
Sincerly
James Herrmann
Millshaven HO Assn
Evans GA

DonnaS (Tennessee)
Posts: 5,671

Posted:

James,
You are asking to do a daunting task for a brand new HOA. All documents have the Developer junk in them. Leave that alone for a while. Get your association up and running smoothly, get a Board that is paying attention and down the road you can amend the excess developer clauses and paragraphs.

You CANNOT just rewrite the covenants. Each and every word that is changed or omitted must be given to the membership in the form of an amendment and will need to be voted on by that membership. Some things pass and some do not. It is a huge task to rewrite the entire set of Docs so when you do, take the time to change what is not working for the community and add what you need. And do make sure that you follow the Georgia HOA laws. They rule so you must not conflict with them..

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Quote:

Posted By JamesH6 on 07/18/2008 12:12 PM
The developer is about to turn over the HO Assn to the new board. The present covenants are full of "Developer this and that". Suspect we need new covenants stripping out all reference to "Developer". Do we simply do that or can we re-write all of it to thus develop a new set of covenants? Can you direct me to a sample covenant site?
Sincerly
James Herrmann
Millshaven HO Assn
Evans GA

Is the developer done? Out of there? Is the developer still building units? Or, has the developer merely reached the point where homeowners now have a majority on the board.

If the developer is still building units, many of those "developer this and developer that" clauses may not be possible to change. And, once he's out of there, there is probably no need to.

JohnO6 (Georgia)
Posts: 424

Posted:

Hate to be the "wordsmithing stickler" here, but it's more likely that your covenants aren't full of "developer" this and that, but "declarant" this and that.

The distinction is probably moot unless the 'declarant" is actually a different legal entity that the developer or builder or both.

As previously mentioned, once the developer is done most of what the covenants grant him are probably not relevant, but I wouldn't ignore the very important step of carefully reading and understanding (legal interpretation advised if needed) each and every privilege given to him/her.

For example, in our HOA the declarant retained the ability to unilaterally annex any other property he owned in the county into the HOA for a period of 7 years regardless of whether he continued to own anything there or not. A very frightening prospect indeed.

EllenS1 (Florida)
Posts: 1,148

Posted:

James,

Donna has given you excellent advice. Live with the docs for some time before you attempt the huge task of rewriting the covenants. After they are rewritten and approved by whatever percentage of homeowners who must approve them (ours say 75%) they should be reviewed by an attorney who specializes in HOAS. Then they will need to be recorded so as you see all this will take lots of time and the costs involved.

One addition that I think would be invaluable is to give the HOA fining rights for homeowners who violate the covenants. Our HOA has experienced lots of problems trying to enforce the covenants simply because everyone seems to know they can't be fined. Most owners comply when they receive a violation notice but you will always have some who will toss the letter and do nothing. So it's what do we do now and unfortunately the only ultimate action is to employ an attorney or, if applicable, notify Code Enforcement in your area.

There are lots of reason to live with these covenants until you can identify anything you would like added or deleted.

DonnaS (Tennessee)
Posts: 5,671

Posted:

James,
As Ellen and the others have said, just wait a while to amend or rewrite your documents. To rush the rewrite sometimes rushes past some items that might not be in the current docs. As you work into your taking over the association, it is amazing the odd items that might have been forgotten or will crop up. It is not cheap to have amendment changes done so get them all done at once. Living with the current docs will be your learning experience.

JohnO6 (Georgia)
Posts: 424

Posted:

Ellen brings up an excellent point about the ability to fine, etc. Interestingly in Georgia you can avoid amending the documents (in the event that they don't specifically give the HOA the right to fine), by merely submitting the HOA to the Georgia Property Owners Association Act. By making this corporate entity part of that act, you are automatically given the right to fine, place liens, etc.

The only stumbling block, is that some covenants when originally filed specifically state that they are not intended to be submitted to this act. In that case, you do actually have to amend the declaration.

GlenL (Ohio)
Posts: 5,491

Posted:

James our documents were originally recorded in 1992 and they still contain the references to the Declarant who was done and gone around 1997 and they still work just fine.

Studies show that 5 out of 4 people have problems with fractions

GlenL (Ohio)
Posts: 5,491

Posted:

John & Ellen, Ohio passed a law four years ago giving Condo's the ability to fine by amending their documents which could be done by the BOD without a homeowner vote. In addition our documents already gave the BOD the power to make a "Special Assessment" to a homeowner to cure a violation and the ability to require them to: In any case of flagrant or repeated violation by a Unit Owner, he may be required by the Association to give sufficient surety or sureties for his future compliance with said covenants, conditions, restrictions, By-Laws, Rules and Regulations.

Studies show that 5 out of 4 people have problems with fractions

BillS14 (Indiana)
Posts: 1

Posted:

Our HOA, 103 homes has strong apathy, if you can call it that. We get very little turn out for general meetings or events, so changing the covenants by vote is next to impossible.

The reason I am writting is that we have a retention pond that is posted no fishing, swiming, etc. but several owners repeatedly are found fishing. We have discussed this with, those who attend the g-mtng about the impact on our insurance policy. The policy does not cover fishing and would be a large increase to add.

How do you enforce, penalize if you will, these repeat offenders.
Bill

DonnaS (Tennessee)
Posts: 5,671

Posted:

BillS,
Please start a new thread so we can get back to you easier,
Thanks, Donna

MicheleD (Kentucky)
Posts: 4,491

Posted:

Our documents do not mention "declarant" at all, but do mention, and define "Developer."

In fact, we have been advised (by several different attorneys who specialize in HOA matters) that we do not need to amend to remove the references to "Developer," because our CC&Rs also define references to "Developer" to include any entity, person or association to whom Developer may assign rights.

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