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Subject: HOA members wish to leave HOA

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FA
(Wyoming)

Posts:7

08/15/2006 9:36 AM
We have an HOA composed of 91 properties. Our covenants, established in 1975, restrict development to single-family homes (most are on one-acre sites). A property owner want to dissolve their relationship with our HOA so that they can build and use a motorcycle race track on three adjoining undeveloped properties within the HOA that they own. The county will probably grant the request if they are able to remove their property from our HOA. We, the HOA board, hold that the county cannot legally remove their property from the Association, that our restrictive covenants are binding and go with the property, not with the current owner. Any opinions?

F. John

RogerB
(Colorado)

Posts:3725

08/15/2006 10:31 AM
FA, if the 3 undeveloped properties have deeds which include them in the association then the association can say no to letting them out of the association.

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

JoelM
(Ohio)

Posts:10

08/15/2006 11:18 AM
This is an issue that I would seek advise of a Community Association attorney in your area. I think a board would be authorized to seek advise of counsel in order to make the proper decision. This is something the person should have investigated before they purchased in the association, assuming that they knew of their intent at the time.

FA
(Wyoming)

Posts:7

08/15/2006 12:37 PM
Thank you both for the prompt reply. The property owners knew of the protective covenants and were given a copy at the time of closing. What they are trying to do now is get the general public on their side by calling a public meeting (published in our local newspaper), arranging a meeting with the county commissioners and another meeting with the town council to present their case. We have had a lawyer tell us that our covenants are essentially solid. Yet, the people who want a race track for their kids and others who want to race dirt bikes are trying to get sympathic public opinion on their side based on the premise that it's a healthy outlet for the kids to let off steam and there is no other property available for this activity. Well, duh! There is no other place for them to race their bikes because no one wants this noisy, dusty activity within 5 miles of their homes. I don't know what they expect to gain from a public hearing, but it has me nervous.

F. John

GeraldT1

Posts:0

08/15/2006 1:12 PM
FA, The needs of some (motorcyclists) must be balanced by the needs of the entire HOA (owner's with investments). Curious if the use of the land as a motorcycle race track will incur a fee? Wouldn't it be more advantageous for the county and the HOA if it denied the request and the land was used for single-family homes, rather than a racetrack? GeraldT1 NNJ

FA
(Wyoming)

Posts:7

08/15/2006 2:00 PM
I have no idea if the landowners want to charge a fee. But, the development of single-family homes would certainly be advantageous to the county tax base. There are no homes currently constructed on the properties in question. The land has been vacant for many years and was probably previously used to graze cattle or horses. It's too steep and rocky for dry-land farming.

F. John

JosephW
(Michigan)

Posts:787

08/15/2006 3:28 PM
It looks like they are just trying to end run the documents. Your attorney is probably right about the covenants being solid, but something about this doesn't hang right. Their attorney should have told them the same thing, so this could possibly just be an opening gambit, by presenting the worst possible use for the the land, using the public meeting to try and put the association in a bad light, and then to come back with something not as bad in hopes of getting that. No one in their right mind would think that homeowners would look forward to having a dirt-bike track near their home. Something smells (and not just exhaust fumes)...keep your eyes and ears open. Joe

Joseph West Official HOATalk.com Sponsor Community Associations Network, LLC www.CommunityAssociations.net *See legal notice below (end of page) or go to www.hoatalk.com/legal

RogerB
(Colorado)

Posts:3725

08/15/2006 4:09 PM
FA, this looks like a PR effort. I would consider sending a letter to the owner explaining the lots are part of the association and can not be separated from the association without a 2/3 (or whatever percent is specified in the Declaration) approval of all owners. Since the majority of owners are not in favor this will not be done and therefore a meeting with the town council and the county commissioners is a waste of their time. A race tract will not be allowed by the association. Send copies of the letter to the Mayor of the town council and the county commissioners. Also, I would send a copy of the letter to the newspaper who published the notice of the public meeting and request they publish this rebuttal.

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

DonN
(Michigan)

Posts:242

08/15/2006 6:18 PM
Common law on interpretation of restrictive covenants varies from state to state, but most of the principles appear to be about the same. In Michigan, a ruling by the Court of Appeals in a recent case, Maatta v Dead River Campers, Inc, appears to apply. You can read the appellate digest summary at http://courtofappeals.mijud.net/Digest/newHTML/24884821.htm#24884821002. The digest summary provides a link to the full text of the Court of Appeals decision. The bottom line, at least in Michigan, is that adding or removing a property from a restricted covenant requires unanimous approval of the property owners. Your state may be different.

Don Nordeen Governance of Property Owners Associations

FA
(Wyoming)

Posts:7

08/16/2006 7:33 AM
Thank you, all. Our board is having a meeting this weekend to discuss this issue. I will pass around your comments. You've reinforced the board's position that these landowners can do nothing to change the land use restrictions.

F. John

FA
(Wyoming)

Posts:7

10/21/2006 12:32 PM
Well, we presented our case to the County Commissioners and they voted to allow the vacancy based on the County Planner's recommendation. They also said that since the lots were physically located together at one end of the plat, vacancy would not hurt other owners. Now we have to sue the Commissioners for making a bad decision. Our covenants allow vacancy only by 2/3 vote of the members, not some arbitrary ruling by the Commissioners and they know that because they have a copy of our covenants. Thank you all for taking the time to reply and offer advice. (insert smiley face here).

F. John

BrianB
(California)

Posts:1748

10/21/2006 4:12 PM
i would have to say the county commissioners have no jurisdiction.. they can say all they want, but who cares, they don't make or enforce the rules on property deeds. They could declare the winner of the next presidential election too, but that don't make them right, or it legal.

BrianB
(California)

Posts:1748

10/21/2006 6:41 PM
Also, ask the county commissioners if they would rule in my favor on this... I owe Citibank a lot of money on my credit card, and i really don't want to pay it. I would rather do other things with my money. Can they rule in my favor, and let me out of my debt to Citibank? because basically, that's what they did with this case: they butted into a CIVIL contract between two parties, a private citizen and an incorporated business entity, and decided they had the right to invalidate a BINDING, CIVIL contract.

FA
(Wyoming)

Posts:7

10/22/2006 7:31 AM
I love the analogy between Citibank and a private citizen! BrianB, I think that you have given us some ammunition to fight this war. Thank you.

F. John

ClaudeV
(Florida)

Posts:84

10/22/2006 8:50 AM
FA, I would ACT QUICKLY before they can turn the lots into a race track and cite "good faith" because of the county commissioner's decision. An injunction is the next order of business I would presume. Have your attorney earn his fee...expeditously! (Insert smiley face here)

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