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TishS
(Washington)

Posts:116

08/16/2010 2:20 PM
OK I won the first round of my court case. Need to know if anyone has ever heard of a HOA administratively disolved (at least 8 years) A new corporation was formed and new and different articles were filed, same name was used. There is no record of the transfer of the common property to the new corporation. Since the legal owner name was the same, and it was not known to the members of the disolution, the origianl articles are what have been given out to members, no one noticed. Is anyone aware of a case like this before? The concern is the common property declaration says If the corporation is disolved the common properties must be sold and proceeds divided among its members. These properties have all changed hands multiple times since the disolution

DanielH1
(California)

Posts:481

08/16/2010 3:16 PM
I can't say for sure but I can guess. Not a lawyer, either. When you say, "HOA administratively dissolved", I suspect that you mean "corporation administratively dissolved". HOA would only be dissolved as the result of a court case but the HOA corporation might be dissolved by not paying the fees to maintain the corporation. If the corporation is dissolved, the HOA would likely be turned into a de-facto general partnership to include all homeowners. This partnership would be created automatically, even if the homeowners took no action. In order for the general partnership to incorporate, the partnership would have to either (A) follow state law on general partnerships to vote and decide to incorporate or (2) invite each and every homeowner to sign and agree to join the corporation. In both cases, the corporation would have to issue shares/interests in the corporation to each homeowner. Like you say, the new corporation wouldn't technically own the Common Areas unless the general partnership (or the previous corporation) transferred them. I'm not sure who sent out the original articles or why. The original articles are irrelevant because they refer to a corporation that no longer exists and has been dissolved. It doesn't matter what they say or who they were sent to. The sale of the common areas upon dissolution is boilerplate. You might that to check if it is upon dissolution of the corporation or the HOA. If it is upon dissolution of the corporation, it is impossible to sell or give away the Common Areas (because nobody wants them) so, even if somebody went to court to try to enforce that clause, the clause would probably be invalidated because it is impossible. If it is upon dissolution of the HOA, your HOA hasn't been dissolved so it doesn't matter. It doesn't matter who bought or sold their individual homes during this time. Their Common Area ownership is legally tied to their ownership of their individual home so nothing needs to be done separately. I think that, often, dissolved corporations can be reinstated; the HOA will probably have to pay back fees. This would be far easier, I think, even now. So, as I see it, your HOA is a general partnership. Previously, it was a corporation which was dissolved. Somebody created a new corporation with the same name as the dissolved one but this new corporation is just an empty and irrelevant entity, unrelated to the HOA. If you want to fix the HOA, you should look into reinstating the original corporation that was dissolved. If you want to sue the HOA, name each and every homeowner on the lawsuit (exclude yourself).

MaryA1

Posts:0

08/16/2010 3:17 PM
Tish, Congratulations! Yes, I've heard of an administrative dissolution. It happens all the time when an HOA fails to submit the annual report to the Corp. Commission. In AZ, there are other more serious reasons for an admin dissolution. Are you saying that is what happened to your HOA? If so, what were the grounds for the admin. dissolution and was the HOA reinstated? If reinstated, was it reinstated as a voluntary assn? Were the common areas required to be sold? In AZ this would not necessarily be a requirement for an admin dissolution.

TishS
(Washington)

Posts:116

08/16/2010 4:23 PM
Well here is where we are at. The HOA position is the original HOA no longer exists. The old one was the one listed on my CCR's and was a mandatory HOA. The new one corporation has the exact same name and the same officers filed the new articles of incorporation and changed the purpose of the corporation to make it a community club making the park available to anyone for a fee and eliminating the responsibilities listed on the CCR's) In this case the association has a community park..that I am sure could have been sold, if anyone had known about the change in direction of the corporation. There is no record of anyone ever being consulted or informed of the dissolving of the corporation or changing it to a community club. I think I understand from the feedback, is that the "share" of the community property belongs to whoever owns the original properties today?

SteveM9
(Massachusetts)

Posts:1442

08/16/2010 4:29 PM
If the corporation is disolved the common properties must be sold and proceeds divided among its members. I'm confused, what makes you think the new HOA isn't associated with your community. If dormant, anyone living in your community can re-start the HOA. Are the common areas not in the name of the HOA? The common areas are on your deed, which the bank owns. So... to sell the common area you will need approval from every mortgage bank, second mortgage, every homeowner, etc.

TishS
(Washington)

Posts:116

08/16/2010 6:44 PM
Steve, The new HOA say they have nothing to do with my CCR's. My CCR's describe an association that is mandatory and limited to a certain property jurisdiction. The new association board does not even live in the property jurisdiction described. The members do not have CCR's are their properties...except the original group at least (which are now in the minority) Funds are being spent for the benefit of these new members. They did not know the CCR's existed and the original members did not know all these other people existed, until the death of the original president. Some of the new members thought they bought deeded rights, some think it is a neighbor hood community organization, who knows what the others think. It appears that everyone got different documents and a different story. It is a hot mess!

SteveM9
(Massachusetts)

Posts:1442

08/16/2010 6:49 PM
I'm confused.

JerrellC
(Florida)

Posts:83

08/16/2010 7:07 PM
Tish You might want to check on whether the roads in your subdivision were dedicated to the public. This should be noted on the original subdivision plat of you development. If this be the case then the roads are still there as originally dedicated and could not be sold to anyone. Only if the roads are officially closed by ordinance by the public agency the city or county would the roads become private if they were previously dedicated to the public. As for the corporation becomming non existant I have seen this happen many years ago in Florida with a large land developer that went bankrup. Many years later a desendant of the origial developer refiled the same corporation name with the state only for the purpose of creating clouds on titles. By claiming an interest in these lands he was paid a release fee (quit claim) of around $75 for each property in these lands that was later sold rather than fighting him in court. For years this had been going on. I don't know if he is still doing this today. The company I worked for FPL Company recognized this as a fraud and never paid him anything. What you have in your HOA sounds similar to this. I don't believe your current BOD can sell or charge a fee for the use of your common areas at this time for using the (Roads,Parks,etc) after the orginal corporation has been disolved. By the way who is maintaing your common areas now? JerrellC Florida

TishS
(Washington)

Posts:116

08/16/2010 9:39 PM
The only common property (that I know of) is a private beach and boat launch. The HOA/Community Club (whatever) voted everyone to give a gift of 700 for replacement of the boat launch just this year. We have no idea how many members there are so they had to just guess at an amount. This was my big red flag moment. There is still an outstanding amount I believe. The beach property has not changed hands since the new hoa was incorporated, although new hoa has the exact same name as the original HOA. Roads belong to the county. Yes this is very confusing. We have CCR's members 29, Bylaws 97 members, Insurance 48 members, actual members...who the heck knows? By the way..this property is on an island of vacation homes if that explains a little why it was not immediately noticed all these extra people, homeowner association meetings were held I assume, but no written invitations were sent out, I was told mail is expensive, if you dont have an email address on file..too bad! Many owners are in their 90's I am sure they dont even know what email is.

TishS
(Washington)

Posts:116

08/16/2010 9:39 PM
The only common property (that I know of) is a private beach and boat launch. The HOA/Community Club (whatever) voted everyone to give a gift of 700 for replacement of the boat launch just this year. We have no idea how many members there are so they had to just guess at an amount. This was my big red flag moment. There is still an outstanding amount I believe. The beach property has not changed hands since the new hoa was incorporated, although new hoa has the exact same name as the original HOA. Roads belong to the county. Yes this is very confusing. We have CCR's members 29, Bylaws 97 members, Insurance 48 members, actual members...who the heck knows? By the way..this property is on an island of vacation homes if that explains a little why it was not immediately noticed all these extra people, homeowner association meetings were held I assume, but no written invitations were sent out, I was told mail is expensive, if you dont have an email address on file..too bad! Many owners are in their 90's I am sure they dont even know what email is.

SteveM9
(Massachusetts)

Posts:1442

08/17/2010 6:07 AM
The new HOA say they have nothing to do with my CCR's. My CCR's describe an association that is mandatory and limited to a certain property jurisdiction. This is what I see happening..... You and the 29 original members could re-start the original HOA because you actually are members of the HOA. You can probably check the deeds of all the property owners around you easy enough online. See all the deeds of the 97 bylaw members and if they have any mention of beach rights. Next see who granted them those rights. If your association never granted them the rights but its on their deed, it means nothing. you cant grant yourself beach rights.

MaryA1

Posts:0

08/17/2010 2:22 PM
Tish, If, as you say, the original HOA no longer exists because it was dissolved then why didn't all the original members know? The HOA cannot be dissolved w/o a vote of the members even through an administrative dissolution! Read your original CCRs -- I will be surprised to learn that is not true. Also the nonprofit corp statutes for your state should state the procedure to administratively dissolve a corp. The AZ statutes state: "If the members of the corp are entitled to vote on dissolution, a corp's BOD may propose dissolution for submission to the members." It goes on to state all the requirements that must be met including a vote of the members. Did the judge in your case affirm that the original HOA was dissolved? Are you still paying assessments? If so, why? Have you formally joined the new HOA? If not, then you are not a member. Even if the original HOA was dissolved, the CCRs that are attached to your deed are still in place and enforceable. Those CCRs stay with the property -- they run with the land. I'm not sure what the procedure is to remove deed restrictions. Who is maiantaining the common areas and whose name is on the deed?

TishS
(Washington)

Posts:116

08/18/2010 6:46 PM
Ok guys I really am not making this up. The new HOA/community club is claiming adverse possession on the common properties. Roughly 10 of the 97 lots have had the bylaws attached to their deeds (which is the only document that says anything about these lots being members) and some generic CCR's regarding designated forest land they have no name of an association them, 29 lots have the original CCR's, one or two actually belong to another association and have the bylaws for the Association/Community Club and CCR's for an unknown HOA, most have nothing. The original common property was deeded to the Association, but the new HOA's position is that the name on the deed is not this new HOA, but the old HOA (by the same name), but the original HOA lost possession of the common property because we abandoned it, and the new HOA has been using it since they started. REMEMBER, the name of the HOA has never changed since day one, meetings have been held regularly, the original bylaws, articles of incorporation, and CCR's have been provided to members as recently as last Novemember, the only way anyone would have known the old HOA was administratively disolved would have been to go to the State and request a historical check and request a copy of the articles filed with the state...I did not think to do that or could have even imagined at the time I needed to. All of this because I wanted to have a judge rule that I was indeed part of a mandatory association, what the name of it was, and who else are members according to my CCR's. We have not even gotten that far yet.

TishS
(Washington)

Posts:116

08/18/2010 6:46 PM
Ok guys I really am not making this up. The new HOA/community club is claiming adverse possession on the common properties. Roughly 10 of the 97 lots have had the bylaws attached to their deeds (which is the only document that says anything about these lots being members) and some generic CCR's regarding designated forest land they have no name of an association them, 29 lots have the original CCR's, one or two actually belong to another association and have the bylaws for the Association/Community Club and CCR's for an unknown HOA, most have nothing. The original common property was deeded to the Association, but the new HOA's position is that the name on the deed is not this new HOA, but the old HOA (by the same name), but the original HOA lost possession of the common property because we abandoned it, and the new HOA has been using it since they started. REMEMBER, the name of the HOA has never changed since day one, meetings have been held regularly, the original bylaws, articles of incorporation, and CCR's have been provided to members as recently as last Novemember, the only way anyone would have known the old HOA was administratively disolved would have been to go to the State and request a historical check and request a copy of the articles filed with the state...I did not think to do that or could have even imagined at the time I needed to. All of this because I wanted to have a judge rule that I was indeed part of a mandatory association, what the name of it was, and who else are members according to my CCR's. We have not even gotten that far yet.

SteveM9
(Massachusetts)

Posts:1442

08/18/2010 8:06 PM
The new HOA/community club is claiming adverse possession on the common properties. Hah, they already knew they didnt own it, and knew someone would bring it up someday. They were already prepared for you. You cant really "claim" adverse possession. A judge has to award it to you. Your chances are good they will loose, most adverse possession cases side on behalf of the rightful owner. Courts hate taking property from people. Start asking around for a real estate lawyer who also handles litigation.

MaryA1

Posts:0

08/19/2010 8:17 AM
Tish, This is a real can of worms that can only be sorted out by an attorney or in a court of law. I don't think any of us on this forum will be able to give you good, concrete advice on this. All we can do is offer opinions, which together with about $4, will get you a cup of latte at Starbucks!

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