CharlesH9
(Michigan)
Posts:80
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| 07/25/2008 8:45 PM |
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decleration or a master deed that can't be ammended for x number of years? I keep reading posts about "just ammend" your CCR's or deed or declaration or this or that. I didn't think it was that easy. Maybe I'm missing something here or am I the only one who has ever heard of this in a declaration? Are you guys all past those years or am I missing something here.
Also, don't you have to file an ammeded CCR/decleration with the county for it to be valid?
I'm not complaining, just confused why I seem to have the only document with this clause. |
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TonyM3
(Arizona)
Posts:131
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| 07/25/2008 9:37 PM |
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Posted By CharlesH9 on 07/25/2008 8:45 PM
decleration or a master deed that can't be ammended for x number of years?
Our ccr&rs have an expiration date and a seperate admendment clause.
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RobertR1
(South Carolina)
Posts:2074
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| 07/26/2008 5:18 AM |
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Charles,
In all probability the restrictions for ammending CC&R's does have a termination date. if your board feels this is having a detrimental effect of the business at hand, and you wat a quick fix, get a lawyer to petition a judge for clarification. Be sure your can prove your case. On the other hand, it is entirely possible there is some language in your documents that will get you off the hook. O the fce of things, it sounds like, if your association is under control of Membership and has be officially sanctioned that way, you can take out the restrictive clauses. This all could have been added for the developers edifications and has nothing to do with you as a New Association. After all, when the turn over took place you all accepted the documents, if you all made a mistake ask for forgiveness to right the wrong. |
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RogerB
(Colorado)
Posts:3694
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| 07/26/2008 5:37 AM |
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Charles, the Declaration of CC&Rs must be filed with the County Clerk of every county within which the Properties reside or else it has no authority. Some Declarations do have a clause which do not allow amendments for 30 (or some other number) of years and will automatically renew for 10 (or some other number) of years. In which cases any amendment must be filed with the County Clerk prior to the renewal date with the stipulation to become effective at the expiration date. The first amendment to make at that time is "this docuement may be amended from time to time whenever an amendment is approved by 2/3 of all homeowners".
For those HOAs which are waiting for the 30 years to expire they can try other creative means to achieve desired results. |
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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 |
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CharlesH9
(Michigan)
Posts:80
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| 07/26/2008 5:41 AM |
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Tony says:
"Our ccr&rs have an expiration date" and
RobertR says
"In all probability the restrictions for ammending CC&R's does have a termination date."
What are those things? Also what do you mean by the membership can take out the restrictive clauses? When we took over in 2006 I thought we got the documents as is, so now what? |
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RobertR1
(South Carolina)
Posts:2074
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| 07/26/2008 7:13 AM |
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Charles,
CharlesH9,
Don't try and complicate a straightforward issue. Read your documents, and follow the requirements for amending your CC&R's. Do your home work. In fact if you are going to take out these restrictive requirements you don't like, try and find all the other restrictive requirements you don't like, add some stuff you feel you can justify, write it up, get the Board to call a special meeting to amend documents (follow your guidelines.) Passage should be a snap, members of new associations don't know much about these things, don't much care, and as long as it doesn't mean more monthly charges, will bend over backward to help the Board. Why? Because they don't have to do anything, of course. In the unlikely event they are missing, go to your non-profit status and amend according to that or maybe your state has written procedures. Do it as easy as you can. What you end up with is: The First Amendment to the Master Deed and /or By-laws of (Name of Association) as licensed by the State of (whatever). In the end get a lawyer to ok the wording and pay him to file the amendment. You might have been able to force the developer to do this before turn-over, but that boat has sailed if he is no longer in the picture. |
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CharlesH9
(Michigan)
Posts:80
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| 07/26/2008 12:49 PM |
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| Ok, so the requirement is 25 years and we'll be waiting to ammend the decleration. In the meantime must it be upheld word for word? |
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RogerB
(Colorado)
Posts:3694
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| 07/26/2008 12:56 PM |
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Posted By CharlesH9 on 07/26/2008 12:49 PM
Ok, so the requirement is 25 years and we'll be waiting to ammend the decleration. In the meantime must it be upheld word for word?
Yes, with the proviso that the Board use good business judgement on enforcement.
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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 |
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MaryA1
(Arizona)
Posts:2157
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| 07/27/2008 1:35 AM |
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Posted By CharlesH9 on 07/26/2008 12:49 PM
Ok, so the requirement is 25 years and we'll be waiting to ammend the decleration. In the meantime must it be upheld word for word?
Charles,
Are you certain the 25 yr expiration date isn't prefaced with, ". . .as amended from time to time. . ."? My CCRs read: "As amended and supplemented from time to time, this declaration shall continue in full force for a period of 20 years. From and after this date, this declaration shall be automatically extended for successive periods of 10 years each." THe CCRs of my former assn essentially says the same thing only is worded a bit differently: "This declaration, as amended from time to time, shall be effective upon the date of its recording, shall continue in full force and effect for a term of 30 years from the date of its recording, and shall be automatically extended for successive periods of 10 years each."
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CharlesH9
(Michigan)
Posts:80
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| 07/27/2008 8:28 AM |
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I am certain. Here is the clause:
This Declaration runs with the land and will be a burden on and benefit to the
Developer, its successors and assigns and any person with an interest in a Lot for
15 years from the date it is recorded. At that time, the restrictions will be
Automatically extended for 5 successive periods unless a majority of the
Current homeowners of lots sign and record an instrument changing them except
Section 11 thereof which shall not be amended.
So the items in the decleration stay for x number of years, word for word is what I understand. There are some size and material restrictions on fences and shed that are spelled out in the decleration and some members want bigger sheds and taller fences. I haven't seen anything in any document to allow or not allow variances. Hmmmm, what to do???
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MaryA1
(Arizona)
Posts:2157
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| 07/27/2008 3:12 PM |
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Charles,
Do you have an article addressing amendments? If so, can you please post it? I'm interested to see if it specifically states an amendment cannot be undertaken until the initial 15 years has transpired. If not, then, IMO, that would mean an amendment can be undertaken during the initial 15 year period. BTW, it would seem to me that if no amendments can be undertaken during the initial 15 year period, there would be no need for an amendment clause. |
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CharlesH9
(Michigan)
Posts:80
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| 07/27/2008 5:38 PM |
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| Is that what I wrote above or are you asking for something else?? |
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RobertR1
(South Carolina)
Posts:2074
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| 07/27/2008 5:57 PM |
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Charley,
You got me Charlie, it seems to me your clause specifically give the membership to change the documents to what ever they want.
Maybe I am missing something, but if I wanted to change them, I would start from the clause and build on that. And if you can get the votes and get them voted at a annual or special meeting, you have done the deed. Of course you do not just want to have no restrictions or considerations. And it is clear this clause was written to protect the developer from some harm that never happened, and now he is gone, so who really cares what he wanted. |
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KirkW1
(Texas)
Posts:1110
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| 07/27/2008 6:25 PM |
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Reading the portion you posted it would appear that your CC&Rs are in fact static for 15 years. Then automatically renew for five year increments and can only be amended at the 5 year interval. (Section 11 can not be amended though.) I suspect you could also completely repeal the covenants at one of the intervals as well. I don't know if section 11 would still remain in effect or not. (And of course have no idea what is in section 11.)
I recently read a court opinion on a similar covenant and indeed the thing could not be changed for the first period of time. This is evidently common in some parts of the country. But it is not as common in other areas. Our covenants can be amended at any time though the renewals occur in intervals unless repealed.
As for enforcement, the truth is that the association can decide to not enforce whatever they choose to not enforce. But under these circumstances the following should be kept in mind:
1. The rule still exists and the course could change to start enforcing it later.
2. Any person who has a claim that their property values might be affected can effect a lawsuit to enforce the covenant. Thus one person in the neighborhood could potentially enforce every provision the association chooses to not enforce. The only limitation would be the depth of their pocketbook to file the suits. |
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MicheleD
(Kentucky)
Posts:1676
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| 07/27/2008 6:55 PM |
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I'm somewhat curious at what point in the 15-year period your HOA is.
For example, does the 15 years begin with the date of sale of the very first lot (as many do)?
If that is the case, and your HOA development has been around a few years, it really may not be that far off that you will be able to change it, anyway.
When our developer had control, he would not have been at the turnover point for almost 10 years after the development was begun, anyway.
So that would mean that within 5 years of the residents taking over the association amendments could be begun.
That's not that horrific of a timeline, then. We didn't change/amend our CC&Rs until about 3 years after we took over anyway, so you may be closer to that first increment to amend than you realize.
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CharlesH9
(Michigan)
Posts:80
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| 07/27/2008 7:53 PM |
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Robert,
I think I am as confused as you are. Not sure the membership has the right to do anything with that document yet.
Michele,
We are in year 4 since the declaration was recorded.
As I was reading other posts I saw the question about D&O insurance, out BOD just got that last Feb. I believe. I'm sure that will help them down the road. |
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GlenL
(Ohio)
Posts:1362
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| 07/27/2008 8:27 PM |
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Charles what Mary was asking and I am curious as well is there a section in your documents telling you how they may be amended? For instance most documents require between 67% & 75% to be amended but you evidently can do it with a simple majority.
As I read what you posted you must indeed wait for 15 years before they can be changed and then in five year increments unless another section modifies this one. That is why the documents have to be read as a whole because like the Bible you can find a section here or there that you can interpret to fit your point of view but as a whole it means something entirely different.
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CharlesH9
(Michigan)
Posts:80
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| 07/28/2008 4:54 AM |
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The ammendment clause I posted before was in the declaration.
and here is the bylaw ammendment clause:
ARTICLE IX
AMENDMENTS
Section 1. Proposal. Amendments to these Bylaws may be proposed by the
Board of Directors of the Association acting upon the vote of the majority of the
Directors or may be proposed by 1/2 or more of the Members by instrument in writing
signed by them.
Section 2. Meeting. Upon any such amendment being proposed, a meeting for
consideration of the same shall be duly called in accordance with the provisions of these
Bylaws.
Section 3. Voting. These Bylaws may be amended by the Members at any
regular annual meeting or a special meeting called for such purpose by an affirmative
vote of not less than 75% of all Members. No consent of mortgagees shall be
required to amend these Bylaws unless such amendment would materially alter or change
the rights of such mortgagees, in which event the approval of 75% first mortgagees
shall be required with each mortgagee to have one vote for each mortgage held.
So does the declaration go by this amendment provisison or the one in the its document. You can see where the confusion comes in.
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KirkW1
(Texas)
Posts:1110
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| 07/28/2008 5:17 AM |
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Your bylaws will have separate amendment process and rules then you covenants. Typically, the bylaws are much easier to amend then covenants. Thus it is entirely possible that your bylaws can be amended now while the covenants can not be changed for a period of time and then only at the 5 year intervals when they renew.
Generally bylaws address operational issues that may need to be changed more frequently (and quickly). It is not unheard of for covenants to never be changed. |
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