Get 2 months of free community web site hosting from Community123.com!
Wednesday, May 23, 2018
Get 2 months of free community web site hosting from Community123.com!


SBCA: Free education for HOAs and condos on satellite placement issues.
(National Trade Organization)
Helping HOAs, condos and property managers with satellite placement issues since 1986.
Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Subject: CC&Rs owners not to know and refuse to acknowledge
Prev Next
Please login to post a reply (click Member Login on the menu).
Author Messages
SteveJ7
(Missouri)

Posts:9


07/03/2011 6:51 PM  
We are a contractor. The bank foreclosed on a dvelopement taking the undeveloped land and 15 of the 68 lots the developer had not sold. We then foreclosed on all the private roads which was the only asset left from the developers assets. The developer recorded CC&Rs naming 3 people as the "architectual committee" 2 are the father son owners of the corp. There is a section 12 specifically stating all owners to pay the architectual committee $50 in road maint fees a month. We advised the owners that we will insure, pay the taxes for the land we now have title to and maintain debris and the snow removal. We sent out an invoice to all reducing the 50 in the cc&rs to $37. They have banned together and none paid the invoice the major claim being they did not sign the cc&rs nor did they know. Our claim is you are not required to sign and if you didnt know you did not or your title company did not do a title searh. These CC&Rs were recorded prior to any deed on their lots were recorded. Its a horrible situation as my recourse will totally shut down their nightly rental cabins.
TimB4
(Virginia)

Posts:15723


07/03/2011 7:10 PM  
Steve,

I'm not sure what you are asking as you appear to be just making a statement.

Did you send the same invoice to the bank since they now own the other lots on the road?

I'm also not sure that the roads belonged to the developer vs. belonging to the Association. If your claim was against the developer the Association would not have been involved in the issue. The developer would have controlling authority of the Association, based on the number of lots he owned. However, he would have transferred the roads to the Association.

Even if you do now own the roads, you need to check your State laws as you may not be able to ban ingress and egress to properties that are on the road.

If you were a homeowner with property along that road, I would advise them to seek an attorney who knows real estate and contract law as it appears that, based on your posting, the issue will more then likely be settled in court. I would also advise them to contact the Bank, who would be the controlling authority of the HOA, and demand that they resolve the issue with you.

My advise to you is to get request a meeting with the membership, including the bank, to discuss the issue. You should seek the advise of an attorney and have them at the meeting. You should advise the membership (bank included) to have an attorney present also. Then see what can be worked out.

Tim



SteveJ7
(Missouri)

Posts:9


07/03/2011 9:25 PM  
I am basically trying to get feed back as to the strenght of CC&Rs. I understand them to be extremely strong. It was an extremely unorganized place. The owner of the roads was definetley the developer with a legal description and tax ID as well thats how we got the roads. The bank sold the lots they foreclosed on so the bank is long gone. Nothing in the cc&rs said anything about the roads to the owners it did say at their discretion thay can turn over the water and sewer plant insatalled by owner. I talked to another developement and their cc&rs filed 1980 has never lost any dispute including liens,judgements etc
SteveJ7
(Missouri)

Posts:9


07/03/2011 9:28 PM  
Posted By SteveJ7 on 07/03/2011 9:25 PM
I am basically trying to get feed back as to the strenght of CC&Rs. I understand them to be extremely strong. It was an extremely unorganized place. The owner of the roads was definetley the developer with a legal description and tax ID as well thats how we got the roads. The bank sold the lots they foreclosed on so the bank is long gone. Nothing in the cc&rs said anything about the roads to the owners it did say at their discretion thay can turn over the water and sewer plant insatalled by owner. I talked to another developement and their cc&rs filed 1980 has never lost any dispute including liens,judgements etc. I know i cannot restrict egress and ingress but Im pretty sure i can file a lien as that is also terms of the cc&r for late fees non payment.
TimB4
(Virginia)

Posts:15723


07/03/2011 9:52 PM  
The CC&Rs would be the contract the owners agreed to comply with. As you said, they are attached to the deed. Standard contract law would apply.

However, this issue is unique in the fact that the property (roads) do not belong to anyone in the Association as I would expect that the membership of the Association would be the owners of the lots. If you do not own a lot, you are not part of the Association.

Typically, the developer would have deeded the roads to the city or the Association when the development was built. However, prior to that happening you acquired the road due to failure of the developer to pay you for goods/services rendered. With the expectation that this was legally done, the end effect is that you own the road. You may sell or keep the road as you see fit.

The CC&Rs, per your posting, requires the membership to pay $50 per month for maintaining the roads that are owned by the Association. Per your Posting, the Association does not own the roads, you do. The Association does not have the authority to maintain property that they do not own.

As I see it, and I am not an attorney, you own a private road. Depending on your State/County laws, you may or may not be able to prevent ingress/egress. You may or may not be allowed to not maintain the road. However, you might be at risk for any liability an improperly maintained road contributes to an accident. You may want to check with an insurance company and see what coverage you will need for the Road.

You are not the Homeowners Association and, in my opinion, do not have a right to the $50 the membership would be required to pay to the Association (if one exists).

I understand that you were trying to collect money owed you. Unfortunately, you may be discovering why the Bank didn't go after the roads.

My suggestion would be to get with an attorney and the membership and see about selling the roads to the Association. Note, if the membership has not formed an Association, then they would have to do that first. You might not get what you were owed but you can probably get something. Perhaps you can offer to carry the note which will allow you to collect interest on the payments.

Tim

SteveJ7
(Missouri)

Posts:9


07/04/2011 4:21 AM  
The owners of lots offerd to buy reducing significantly the amount 3 times hence my action.
In the cc&rs throughout mentions owner, archtectual committee and successor or assigns. We are definetely the successor. The issue as far as them buying is they cant get title insurance and only because they are roads with cc&rs title companies dont want to be involved. If that was their true concern I called that bluff by offering a warranty deed as to clear title. The title is clear and we now show as the recorded owner.
Section 12 states all lot owners must pay 50 dollars a month for road maint fees to the architectual committee successor or assigns.
The roads were submitted to the county 2 years ago to take over and maintain after completing this process the county declined which is their right and option taken.
That being said we are the owner of the platted roads, we are the successor per the cc&rs, we are responsible for the taxes and insuranse as well as the maintenance
I think they feel strong in numbers and dont realize we only need to file a lien per the cc&rs for payment default as per the cc&rs on one property and this issue will then be resolved in the courts including the CC&Rs, which is basically good for us as we will up the fees to where they were in 04 when the cc&rs were recorded and ask for the 50 + inflation since 04 which is an additional 14%. This will then become income property with a very high return backed by a court order in regards to the cc&rs. I woild have alredy done this but some of the owners are my friends.
Has anyone challenged win or lose recorded CC&Rs?
GlenL
(Ohio)

Posts:5491


07/04/2011 5:38 AM  
Steve, did you have an attorney advise your that you could do this or did you figure it out yourself? Either way as Tim has posted you need an attorney now! You will most certainly end up suing them to try to get some money, this is what happens when you - Buy a pig in a poke.

Definition of "Pig in a poke" - http://www.phrases.org.uk/meanings/a-pig-in-a-poke.html

Studies show that 5 out of 4 people have problems with fractions
SteveJ7
(Missouri)

Posts:9


07/04/2011 6:21 AM  
To be clear we did not buy in the sense of paying cash at the foreclosure/sheriffs sale. We bid a portion of out judgement lien and was the high bidder then recorded the sheriffs deed. It cost us 0 cash to get the deed we then recorded for the 25 recorders fee. Spoke briefly with our attorney thinking common sense will be used by the lot owners meaning we do have cost to make these roads pretty and safe from snow and storm debris. I advised our position very diplomatically You do have a recorded cc&r prior to you as lot owners closing and recording your deeds. Their claim, whether true or not, to not know of the recorded cc&rs is fine and not my problem they show up on a title search for the developement. I also stated if you did not know of the cc&rs which also state a sewer and water maint fee why would you pay this to the developer/owner/architectual committe when you were billed for this monthly for years. I held this fact as a last resort to avoid the courts. We will see we gave them this weekend to come to terms or even call me as to complaints they might have. Our invoice was due and payable July 1 our recourse is clearly stated as well in the cc&rs to late fees and lien rights. I find it unbelievable for 37 dollars a month reduced from 50 stated on the cc&rs they would contest and risk and highly risk contesting the cc&rs for 37 dollars a month and being shut down in peak season from doing nightly rentals of their cabins while the county reviews the usage and the courts rule on a lien we will file on one owner.
JanetB2
(Colorado)

Posts:3959


07/05/2011 12:15 AM  
Hi Steve:

I would highly recommend you check your State HOA statutes. As Tim stated the roads are not apparently owned by the HOA. In my state the homeowners within an HOA are responsible for paying to maintain HOA owned common area property/assets.

You state that the CCR’s state:

“There is a section 12 specifically stating all owners to pay the architectural committee $50 in road maintenance fees a month.”

Keep in mind CCR’s generally are written to maintain certain items which are maybe in the future to be turned over to the HOA as their property to be owned and maintained. It potentially appears to me that the roads at some point were supposed to be owned by the HOA.

My recommendation is to check with the local city/county government officials with regards to the association. For my association the developer had a “Site Improvement Agreement” with the City in which after certain items in the development was completed they then became city owned property such as the roads. It could be in your circumstance the roads were to be dedicated to the HOA to maintain. If they were not dedicated to the HOA, then potentially the section in the CCR’s which you reference would be null and void.

I am at this time with information provided agreeing with Tim, in that this is why the bank possibly did not go after the roads in the foreclosure. They possibly knew it would be an item they would need to maintain without HOA assistance because of not being owned by the HOA.

SteveJ7
(Missouri)

Posts:9


07/05/2011 5:03 AM  
Thank you. It is a very wierd situation. The owner/developer filed an ammendmant to the cc&rs 3 years later 07 on the verge of Bankruptcy with ridiculous terms main being to nightly rent their cabin they must do through the owner at 40%. This ammendment also mention a POA for the first time. It is a mess. As i said the county reviewed and declined to take over the roads. CC&Rs mention nothing in regards to turning them to the association, it does say "owner may" turn over water and sewer to the association. I guess I will just turn this over to our attorney to fight based on recorded facts. We are the owner of the platted private roads and this is recorded. 2. CC&rs recorded by the developer dated prior to a lot owner recorded deed.
TimB4
(Virginia)

Posts:15723


07/05/2011 5:34 AM  
Steve,


I do not believe you are interpreting the meaning of the word successor correctly. I believe that the documents are talking about the successor of the HOA. Per you latest postings the HOA does exist. If I am correct, you are not the successor of the HOA. Additionally, if you are basing your right to the $50 per lot on the CC&Rs, the membership can easily amend the CC&Rs and completely remove that section. Since you are not a member of the Association (unless you own one of the lots) you would have zero say on the document.

You took possession of the roads because the developer owed you money and it was the only thing left that you thought would be worth any value. In reality, the only potential buyer of those roads is the Association. You said that they would not meet your price. My suggestion would be to sell the roads for what you can. Your legal fees to take this to court probably won't be worth the expense.

Of course, advice and opinions are free and varied. The choice is yours on how to proceed.

Since there are attorneys out there who might just tell you what you want to hear in order to collect legal fees, I would strongly suggest that you get 3 or 4 legal opinions.

Tim
SteveJ7
(Missouri)

Posts:9


07/05/2011 6:16 AM  
It is definetely a mess. The owner developer immediately after filing ammendmant to original cc&rs attempted to get all lot and cabin owners in a POA meeting. None of them showed stating ammendmants in 07 dont apply. My contention is they might have a point to this ammendmant totally one sided. Items even contracdicting the original cc&rs. I dont think using the dont apply will hold water on the original cc&rs as they were clearly recorded prior to any lot ownere receiving their recorded deed. Hopefully we can resolve before i turn this over to attorney. Last word was they are preparing a contract for me to maintain the roads which i will reject no matter what as we feel we already have a contract and a recorded one attached to their deed. Hopefully they realize our downside at this point is 0. thank s again
TimB4
(Virginia)

Posts:15723


07/05/2011 7:21 AM  
Posted By SteveJ7 on 07/05/2011 6:16 AM

I dont think using the dont apply will hold water on the original cc&rs as they were clearly recorded prior to any lot ownere receiving their recorded deed.




Depending on your State HOA laws, if the proper procedure wasn't followed to adopt the new CC&Rs, then even if they were recorded, they could be thrown out.

Typical procedures to amend would have included a notice of a meeting and the actual holding of a meeting to adopt the changes. Per your posting, the developer held the meeting after the CC&Rs were recorded. Therefore, it is possible that those CC&Rs are not valid.


Posted By SteveJ7 on 07/05/2011 6:16 AM

Hopefully we can resolve before i turn this over to attorney.

i will reject no matter what as we feel we already have a contract and a recorded one attached to their deed. Hopefully they realize our downside at this point is 0. thank s again




Well, if your going to reject any proposal they are offering why are you bothering to go through the motions?

Since it appears that your mind is already made up, I'm not sure what the purpose of your posting was for. Based on the content of your postings, I expect that the matter will be settled by a court of law and probably appealed by which ever side loses. This of course only earns money for the attorneys.

BTW, I don't think you would get any money on a regular basis. Typically the money goes into escrow and is used for repairs of the road. The money wouldn't be released until the repairs are complete.


Tim
SteveJ7
(Missouri)

Posts:9


07/05/2011 8:43 AM  
Obviously i have to proceed w attorney as I have never had property with an hoa/poa/cc&rs, which was my purpose of my posting. It seams typical that prior to doing a developement or shortly after all permits and approval a developer can and do record cc&rs. Is this assumption correct? .
I truly hope you are correct on some items.
"The CC&Rs would be the contract the owners agreed to comply with. As you said, they are attached to the deed. Standard contract law would apply"
"Well, if your going to reject any proposal they are offering why are you bothering to go through the motions?"

I am hoping you are correct the cc&rs are a contract the owners agreed to. If so I would prefer this contract as a recorded document since it states the date, amount, the terms and fees for non-payment, lien rights for non-payment and no termination clause that im sure will be part of their contract to maintain that i have yet to receive.
TimB4
(Virginia)

Posts:15723


07/05/2011 10:33 AM  
Steve,

For my last post on this thread.

The CC&Rs are a contract between the homeowners. Most CC&Rs establish an Association to oversee and enforce specifics within the contract.

You are not a homeowner. You are not the Association. Therefore, I do not believe you are part of the contract.

As I said, I am not an attorney and I do not work within the legal profession.

SteveJ7
(Missouri)

Posts:9


07/05/2011 11:10 AM  
I will update for all future use any court ruling on this thread thanks all
Please login to post a reply (click Member Login on the menu).
Forums > Homeowner Association > HOA Discussions > CC&Rs owners not to know and refuse to acknowledge



Get 2 months of free community web site hosting from Community123.com!



News Articles Provided by: Community Associations Network
News, articles and blogs about condos/HOA's

Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.







General Legal Notice:  The content of forum messages are from the posting member and have not been reviewed nor endorsed by HOATalk.com.  Messages posted by HOATalk or other members are for informational purposes only, are not legal or professional advice and do not constitute an attorney-client relationship.  Readers should not act upon this information without seeking professional counsel.  HOATalk is not a licensed attorney, CPA, tax advisor, financial advisor or any other licensed professional.  HOATalk accepts ads from sponsors but does not verify sponsor qualifications nor endorse/guarantee any sponsor's product or service.
HindmanSanchez Legal Notice:  (For messages posted by HindmanSanchez) This message has been prepared by HindmanSanchez for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Members of HOATalk.com should not act on this information without seeking professional counsel. Please do not send us confidential information unless you speak with one of our attorneys and get authorization to send that information to us. If you wish to initiate possible representation, please contact an attorney in our firm. Our attorneys are licensed to practice law in the state of Colorado only.

Legal Notice For Messages Posted by Sponsoring Attorneys: This message has been prepared by the sponsoring attorney for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Readers of HOATalk.com should not act on this information without seeking professional counsel. Please do not send any sponsoring attorney confidential information unless you speak with the sponsoring attorney or an attorney from the sponsoring attorney’s firm and get authorization to send that information to them. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. Sponsoring attorneys that post messages here are licensed to practice law in a specific state or states as indicated in their message signature or sponsor’s profile page. (NOTE: A ‘sponsoring attorney’ is an attorney that is a HOATalk.com official sponsor and is identified as such in the posted message or on our sponsor page.)

Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions )   Terms Of Use  Privacy Statement