Legal documents for HOA

Started by VinnieC • 10 replies • 2153 views

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VinnieC (New York)
Posts: 3

Posted:

My HOA does not have any CC&R, but does have By-Laws and Rules & Regulations. The only document that makes home owners part of the association is a form that the HOA makes every new home owner sign when they buy into the neighborhood. There is nothing on anyones deed. The roads are owned by the association and the water supply comes from the associations pipes (the association pays the water bill). My concern is that if someone buys a house here and does not want to sign this document, which basically tells them that they have to pay dues and follow the by-law and rules, what right does the association have. Remember the roads to each house is owned by the association. It seems that each home owner must/should pay for at least road use/maintenance and water use. People move here because of the beach community and access to a beach area, so most people do not have a problem signing this HOA document. It seems that this could be a legal problem if someone does not want to be a part of the association.

Any thought or comments on this would be appreciated.

Thanks.

MichaelS (North Carolina)
Posts: 5

Posted:

Vinnie,
In North Carolina it would be a problem. Home Onwer's Associations are referenced on the deed with a pud rider. Pud = planned unit developmeent, either single family or townhouse, condo or patio home. If your association owns the roads, water pipes and common property there should be some legal teeth somewhere to hold people accountable to the HOA. I'd suggest calling a real estate attorney in your area and picking their brain. Most real estate attorneys here will do this kind of informal conversation for free. If you're an open title state, where title companies close real estate transactions then they should be able to answer your questions. Gook luck.

Michael Sullivan

JeannieraeO (California)
Posts: 27

Posted:

I'm with MichaelS. I've never heard of bylaws without CC&R's. I would definitely take his advice on this one.

MicheleD (Kentucky)
Posts: 4,491

Posted:

I have never heard of binding documents that aren't tied to the deed.

I'm curious how you know for a fact the roads and water lines are owned by the HOA?

SusanW1 (Michigan)
Posts: 5,202

Posted:

Vinnie - are you in an older subdivision or new condo development?

Our HOA was formed (incorporated) in 1948, after the developer went belly up in 1930. The roads, water system, beach, community center and bridges are all HOA owned. THAT is not in the deed!! WE have to notify everyone who sells or buys in the subdivision that they are in a mandatory HOA and there are annual dues.

Some people have NO idea where their water comes from - and don't ask!!

KirkW1 (Texas)
Posts: 1,665

Posted:

I would look into your state laws regarding creating covenants mandating membership in the HOA. I don't know that there is much you can do otherwise. Since you currently have no issues getting compliance, you should be able to get 100% buy in for a minimal set of covenants.

MaryN (Virginia)
Posts: 125

Posted:

Each state is different. In VA to be a mandatory association there must be paperwork filed at the land use office. A declaration stating that the developer has given authority to the HOA to collect assessments and provide maintenance to common properties must be filed. Membership in an Association is not on our deed/CCR's. We always thought that the Association owned the roads..they do not..checking the plats..each property owner owns the roads that touch their property. We are in court at the present time..and I believe that we are going to be ruled a voluntary association. I believe it would take a 100% vote of all property owners to become a mandatory association. I would encourage you to hire an attorney who specializes in Property Owner Association Law. We had to hire a firm that is located 2 hours away..and it's been worth the distance. Search the web for a Community Association Lawyer in your area. Good luck,
MaryN

MaryA1 (Arizona)
Posts: 7,043

Posted:

Quote:

Posted By VinnieC on 08/16/2005 5:06 AM
My HOA does not have any CC&R, but does have By-Laws and Rules & Regulations. The only document that makes home owners part of the association is a form that the HOA makes every new home owner sign when they buy into the neighborhood. There is nothing on anyones deed. The roads are owned by the association and the water supply comes from the associations pipes (the association pays the water bill). My concern is that if someone buys a house here and does not want to sign this document, which basically tells them that they have to pay dues and follow the by-law and rules, what right does the association have. Remember the roads to each house is owned by the association. It seems that each home owner must/should pay for at least road use/maintenance and water use. People move here because of the beach community and access to a beach area, so most people do not have a problem signing this HOA document. It seems that this could be a legal problem if someone does not want to be a part of the association.

Any thought or comments on this would be appreciated.

Thanks.

Vinnie,

IMO, unless the deed restrictions (CCRs) are noted on your deed the assumption would be that there aren't any. If there aren't any deed restrictions then there shouldn't be an HOA. I would check with an attorney who specializes either in HOA law or property law. The problem here is that this supposed HOA owns the water plant. This is something that would be outlined in the CCRs, but since you don't have any, is it outlined in the bylaws? Perhaps there are CCRs but you just don't have a copy????

SusanW1 (Michigan)
Posts: 5,202

Posted:

Vinnie needs to describe his set-up.

In our sub, if you hook up to water, drive on the roads, cross bridges to get to your home - then you ARE a member! "Improved lot owner" is the definition of a member.

The master deed from the developer deeded over all that to us in 1930. The HOA has been operating since.

GeorgerwilliamsW (Indiana)
Posts: 975

Posted:

Here is where we get into the difference between an expressed and implied contract.

I utterly disagree with Mary's opinion, "If there aren't any deed restrictions then there shouldn't be an HOA." There are all sorts of homeowners associations that do not have deed restrictions. Most are voluntary associations.

My sense is that there is an implied contract created when a purchaser buys a property in the community. The new homeowner is receiving services (water/roads). If a new buyer chooses not to sign a written expressed contract, then it might be reasonable for the homeowners association to deny the buyer water or use of the road.

Based on what you have said here, I think you have an enforceable implied contract that any reasonable judge would uphold. But it may require that you have to go to court to enforce it.

You might want to look into the possibility of recording a written contract with the county recorder or clerk of the appropriate court. While that does not make it a deed restriction, it does make it a public document that can be attached to the real estate, putting people on notice that there are contract obligations apart from the deed itself.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Quote:

Posted By GeorgerwilliamsW on 09/23/2008 2:29 AM
Here is where we get into the difference between an expressed and implied contract.

I utterly disagree with Mary's opinion, "If there aren't any deed restrictions then there shouldn't be an HOA." There are all sorts of homeowners associations that do not have deed restrictions. Most are voluntary associations.

My sense is that there is an implied contract created when a purchaser buys a property in the community. The new homeowner is receiving services (water/roads). If a new buyer chooses not to sign a written expressed contract, then it might be reasonable for the homeowners association to deny the buyer water or use of the road.

Based on what you have said here, I think you have an enforceable implied contract that any reasonable judge would uphold. But it may require that you have to go to court to enforce it.

You might want to look into the possibility of recording a written contract with the county recorder or clerk of the appropriate court. While that does not make it a deed restriction, it does make it a public document that can be attached to the real estate, putting people on notice that there are contract obligations apart from the deed itself.

George,

What is the purpose of an HOA if there are no deed restrictions? Many voluntary assns were formed in order to take care of common areas and these voluntary assns can be and, in many instances are, called HOAs. Other voluntary assns are formed to address property issues that may impact the neighborhood, but these assn's are normally called neighborhood assn's not HOAs. There are no common areas to maintain in these neighborhoods. The term HOA traditionally refers to a mandatory assn formed to maintain common areas owned by the assn (planned community) and/or the members jointly with the assn (condo).

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