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| Tuesday, February 07, 2012
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JodyW
(Georgia)
Posts:2
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| 07/28/2010 1:07 PM |
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I cannot find anywhere that shows where our original bylaws were filed. I hae checked county records and requested copies online of all state filings associated with our homeowners association. We are current as far as the corporation for the homeowners but noone can find where bylaws were ever recorded. I hope they never were cause we are in the process of trying to totally re-write them and if they were never filed originally then it should be easier.
I live in GA. Does anyone know the state law of where they should have been filed? |
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JohnO6
(Georgia)
Posts:415
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| 07/28/2010 1:30 PM |
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Jody -
Typically there are two documents - Declaration of Protective Covenants and By-laws of the HOA. The first are actually deed restrictions and will have been filed at your county courthouse (the same place your deed to your property is filed). In contrast the by-laws describe how the HOA will operate and may or may not have been filed.
If the covenants were never filed, it's likely your deed is referring to something that "doesn't exist" because the declaration wasn't filed. If you run into that suggestion, I'd suggest getting a legal opinion from a firm who specializes in Community Association practice. |
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MaryA1
Posts:0
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| 07/28/2010 1:36 PM |
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Jody,
In AZ the bylaws are not required to be recorded with the Co Recorder as the declaration is. When the HOA was incorporated as a nonprofit, the Sec of State most likely requires the Articles of Incorporation to be attached to the incorporation papers. The bylaws may also have been included but I don't believe it is a requirement. You could check with the Sec of State to see if they have them on file. You can also ask if the bylaws are required to be recorded with the Co Recorder. If they are not (which is what I suspect) then there is no problem re-writing them but I would include a paragraph stating these bylaws, as amended, replace any previously written bylaws. |
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JodyW
(Georgia)
Posts:2
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| 07/28/2010 1:47 PM |
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Thanks for the quick replies. I can find where the protective convenants are filed with County but not bylaws. I did check with Sect of State who handles registration and was told that they do not even accept bylaws. My suspicion is that they were never filed anywhere, or sent to the Sect of State by mistake and discarded.
We will proceed with just replacing old ones with new ones, even if legally we have to state that these are ammended bylaws that replace the whole of the original ones.
Our other issue becomes that the covenants did not have any language to require HOA membership, and everything I can find says we are out of luck unless 100% of the property owners agree to modifying covenants top make membership mandatory. If anyone has any info to the contrary of that please share it.
Thanks |
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GloriaM
(North Carolina)
Posts:829
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| 07/29/2010 12:09 PM |
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Jody:
The reason why the Clerk doesn't record the Bylaws is that it is not a requirement of the State. Only the Declaration of Covenants, Conditions and Regulations are recorded.
You need to read the Bylaws carefully because changing them sometimes requires the same proceedure as the CCR's. |
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MaryA1
Posts:0
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| 07/29/2010 2:56 PM |
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Jody,
So you are actually a voluntary HOA and would like to become mandatory. IMO, the vote requirement to do this should be 100%; however, I don't know that that is addressed in state law. I know there have been court cases in some states to address this very issue. If there is no case law in your state then I would go for a 100% vote requirement. Frankly, IMO, that is the fairest vote requirement. No one should be forced to join an HOA against their will.
Can you tell us why some property owners want to form an HOA. Are there commn areas that are required to be maintained? Frankly that would be the only reason for having an HOA. The covenants can be enforced by any property owner in justice court when there is no HOA. |
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