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Subject: WILL THE REAL CC&R PLEASE STAND UP?

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NikkiT
(Texas)

Posts:30

10/15/2006 4:48 PM
In 1972 when the Developer started our community, he put a document called the Deed Restrictions in place which required a two thirds affirmative vote to change or amend the document. In 1990 the developer transferred ALL Association assets, property, etc to the Association and in 2000 the Board decided the 1972 document was not good enough and made their own which they say supercedes the 1972 CC&R, even though THAT is the document that was handed out at last Sunday's meeting. The Board points as it's guideline the point (#3) in the Transfer Contract/Agreement which states: quote "This Agreement contains the entire agreement of the parties with reapect to the matters covered by this agreement. No other agreement, statement or promise made by either party which is not contained in this Agreement shall be binding or valid." unquote. They state that since the 1972 document was not specifically named in the document that IS NOT VALID, the Association does not have to abide by it. The Board approved CC&R can be changed at any time by the five Board members with no input by the membership nor property owners. Which is the REAL DOCUMENT? THE 1972 DOCUMENT WHICH REQUIRES A TWO THIRDS VOTE OF ALL PROPERTY OWNERS OR THE 2000 WHICH THE BOARD PUT IN PLACE AND WHICH THEY CAN CHANGE AT ANY TIME THEY WISH? Any input would be greatly appreciated. Thank you. Nikki. T.

HaroldS
(Arizona)

Posts:904

10/15/2006 7:29 PM
Well, Our board says they have the power to "interpret" the CC&Rs. So I suppose that is what your board is doing. However, whether it is legally correct is something else. As usual they will probably tell you to "Sue Us." I'm thinking in this case, someone should call their bluff. Harold

JosephW
(Michigan)

Posts:788

10/15/2006 8:40 PM
I would first ask the board if they had obtained an opinion regarding their right to do this from a qualified attorney. And, if they had, would they mind distributing that letter to the owners so that they could judge for themselves. If they didn't get legal advice, I would suggest to them that for everyone's sake and the future stability of the HOA, that they seek one before trying to implement it. If they are wrong, it could potentially screw up anyone's attempt to sell their home at some future date and they could face some possible liability. Let the lawyers do what they're supposed to do, and the board shouldn't substitute their collective wishes in place of actual knowledge. 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

BethG
(California)

Posts:6

10/16/2006 10:39 AM
Nikki - as a legal principle: a new legal agreement/contract cannot supersede an existing agreement/contract without the parties to the first agreement agreeing to it. So, if I understand your question correctly, the Board attempted to override or supersede the first set of deed restrictions by a transfer agreement with the developer and by signing and recording new restrictions. If there were any owners at that time, which I assume there were, then the 2/3 requirement to change the first agreement would have to be met to either terminate or change the original terms. The same holds true for property restrictions. If restrictions are imposed legally on property, they cannot be removed except for certain happenings. One would be if all of the parties who signed the original restrictions to impose signed and recorded a document to remove them. Another would be to get the consent of the parties as required by the restrictions that are recorded, such as the case you described. There are other ways, such as a court order (which would be the case in a legal action to "quiet" (which means change essentially) title. Of course, there may be some extenuating circumstance that I am missing, and this is not to be construed as legal advice, (and note that although it comes from a CA attorney, it would most likely be a universal concept) but it sounds like your Board did something that was not a legal option.

Beth A. Grimm Official HOATalk.com Sponsor Attorney Licensed in the State of Calfornia www.CaliforniaCondoGuru.com *See legal notice below (end of page) or go to www.hoatalk.com/legal

RogerB
(Colorado)

Posts:3725

10/16/2006 11:41 AM
I concur with Beth's post as these are the procedural options in Colorado.

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

10/16/2006 6:57 PM
Thanks so much for your answers, they are in line with what I had figured out. To explain further, the Board feels that when they "took over" from the Developer (1) he ceased to exist as the they took over. (this 'take over' is not true as the Developer retained a portion of the acreage as well as voting privilege. (2) there is a clause at the end of the Transfer Agreement that states "all items agreed upon are in this contract and nothing that was not agreed upon is not included." They feel that quote: "since mention of the 1972 CC&R document was NOT INCLUDED in the Transfer Contract, it is not valid for the Association." unquote. To answer your question. Yes, in 1972 the Attorney for the Association stated in a letter: "2/3 vote of all PROPERTY OWNERS, not Association Members, were the only entity to could change the CC&R." He didn't say the Board 'Members' couldn't (it probably didn't occur to him that the Board would think "their vote" would fulfill the 2/3 vote requirement. This was the only time a legal opinion was sought. The Attorney of Record was fired by the President of the Board because she felt "he simply wasn't working with us." How do I find an attorney in this area (East Texas) that is versed in HOA'S. Is there a regristry? Thanks again. Your answers show me I am pointed in the correct direction. Nikki T.

JosephW
(Michigan)

Posts:788

10/17/2006 7:05 AM
There's a partial list here: http://www.communityassociations.net/states/texas/directory_state_texas.html I'll see if I can find another list. 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

NikkiT
(Texas)

Posts:30

10/17/2006 7:17 PM
Hi Joe, I made a mistake in the last message. the copy of the letter I have from the Association's Attorney of Record was dated 1992 not 1972 as I had mistyped. I tried the web address you gave and got the message that it was "unavailable." Thanks anyway. Nikki T.

JosephW
(Michigan)

Posts:788

10/17/2006 9:57 PM
Nikki, What part of East Texas (large area)? I can send the list separately. 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

NikkiT
(Texas)

Posts:30

10/22/2006 8:50 PM
My HOA is located between Mineola and Lindale. Larger cities are Longview to the east, Tyler to the south, Grand Saline & Dallas toward the west. Another query. In reading this forum, I am seeing the terms HOA (Home Owners Assoc), POA (Property Owners Assoc) and another catagory for condos. Is there a specific catagory for an area 99% mobile homes? The ones in here are single wide (16'w x 70-80' l) and double wide. All are off the axles and are 'tied down', yet we are not considered "permanent housing" as the axles can be replaced and the units moved. Property and homes are owned by the individual lot owners. Thanks for any help you can give me. Nikki T.

JanM
(Texas)

Posts:142

10/23/2006 7:03 AM
Mobile homes would still be considered HOA or POA. Our neighborhood is half mobile and half site built homes, separated into "phases".

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