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Subject: Filing documents conflict
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MelissaP1
(Alabama)

Posts:9862


12/29/2020 2:25 PM  
I started reading the documents I was given on home plan on purchasing. There is a bit of confusion on a few things. Noticed they gave me a "Declaration" and a "CC&R's" that are basically the SAME document. Both even say to refer to them as "By-laws". Thought By-laws are separate from CC&R's??? Not sure if got the right documents.

The question have now is. Noticed on the Articles of Incorporation. It is referenced to be filed in 2 different counties? It's a bit complicated to explain. The zip code of the home is in a city (We will call it Crazytown). That city is really in another county over. However, it's borders do go over the county line. The actual location is in another county and city (Call it "Boondocks"). Kids actually go to that county or city schools. Basically the address is "Crazytown" but everything else is "Boondocks".

Would this document wrong? It seems to flip flop between the 2 counties in the paragraphs. The CC&R's/Declaration shows Boondocks filed in. Articles show Crazytown county. Very confused as Articles are usually filed with the State. The document does have the correct signatures/filing at state level.

What do you think?

Former HOA President
JohnC77
(Washington)

Posts:434


12/29/2020 3:34 PM  
Have to refer you to Carnac the Magnificent.
TimB4
(Virginia)

Posts:17180


12/29/2020 3:37 PM  
I received:

Declaration of Covenants
Restrictions
Article of Incorporation
Bylaws

Note: the Covenants and restrictions are both deed restrictions. They were just filed at different times.



I suspect that your developer hasn't formalized a set of Bylaws.
It's also possible that what verbiage should be in the Bylaws is contained in the covenants.

GenoS
(Florida)

Posts:4242


12/29/2020 3:44 PM  
Run. And remember, suing the HOA is suing yourself.
MelissaP1
(Alabama)

Posts:9862


12/29/2020 3:57 PM  
That is what I was to have received. That is what is so confusing. One does say "Declaration of CC&R's" but then goes on to say they are to be referred to as "By-laws". The other document labelled CC&R's is the SAME but not with the Declaration. The Articles of Incorporation are slightly different with positions etc... but then turns into the SAME documents as the by-laws/CC&R's.

I do know it has only been filed as of June this year. There are some dates missing or left blank. Was drafted by a lawyer. Funnier part is the "Board members" also have the same various addresses between Crazytown and Boondocks. It's like the person who wrote them lives in Boondocks but everyone else is Crazytown.

Seriously the area is very confusing to growth. Crazytown is bursting at the seams. They are even trying to refuse people to annex in. Before Covid they were going to charge a 6 - 10K for anyone purchasing a home or building just to the city. One of the reason choosing to leave Crazytown and go back to Boondocks. Just to find out my new address is going to still be Crazytown! What is crazier? Just looked it up on the map and I am on the last road for Crazytown in that county! I can't escape!!! LOL!

Former HOA President
GeorgeS21
(Florida)

Posts:3602


12/29/2020 4:44 PM  
Alabama?

What was recorded?
MelissaP1
(Alabama)

Posts:9862


12/29/2020 4:49 PM  
The documents... Articles of Incorporation and Declaration of CC&R's. The things required. I know they were actually filed as they do have filing marks and seals on them. So they are officially filed. The question/odd part is which county they are filed in. They say them both counties but the city is in the other county.

Former HOA President
GeorgeS21
(Florida)

Posts:3602


12/29/2020 5:05 PM  
My question relates to checking with the county/counties via their records - accessible online?

I would never accept what someone provided without confirming the recorded docs.
MelissaP1
(Alabama)

Posts:9862


12/29/2020 5:38 PM  
The website to find out where they are filed is included and in the documents. That is filed in the right county. Confused about the identical one that says filed in other county that it isn't in. It then goes on to keep referencing the right county.

The Developer representative didn't know until recently the zip code is for Crazy Town. I don't know how that works as don't think it was annexed into the city. The next development (block over) has a sign city limits ends here.

Former HOA President
AugustinD


Posts:4828


12/29/2020 5:54 PM  
You ought to post the docs. I will respond to anyone making snarky remarks about Alabama. (I am not going to name anyone, but their initials are JC77.) Gulf Shores will always be a favorite place of mine. My favorite Christmas story, Truman Capote's "A Christmas Memory," is said to be based on Capote's time as a child in Monroeville, Alabama.
GeorgeS21
(Florida)

Posts:3602


12/29/2020 6:11 PM  
Melissa,

Have you checked the documents via the online system?
MelissaP1
(Alabama)

Posts:9862


12/29/2020 6:50 PM  
Yes George. Again they are filed in the RIGHT county. However, it also says they are filed in the neighboring county. Which the city it is in is in that county. I just think something is confused.

Not sure if I should bring this up or not. Afraid they may assign me as a HOA representative of some sort... LOL!

Thanks Augustine. I am NOT originally from Alabama. However, don't find the snide remarks against anyone's state particularly positive. In my area where I live most of the people are not from here. It's rare to find a born/bred Alabamian. We don't really like Californians nor the "Florida man". You insult our schools we point you to Mississippi.

Yes, Alabama can bless your heart for your state you live in too...

Former HOA President
MelissaP1
(Alabama)

Posts:9862


12/30/2020 3:58 AM  
I just figured it out ya'll... Forgot they mentioned the HOA wasn't owned y MY builder. It is owned by the Developer across the street. Which from what I understand many of their employees are "jumping ship" to come to MY developer side. That side of the road IS in CrazyTown city limits. So somehow because they own the common property that makes our side Crazytown. However, my Developer advertises they are in "Boondocks".

Basically if you own in Crazytown your home values are viewed much higher. Hence why that other developer is referencing that city/county so hard.

This is just so funny because I am trying to move out of Crazytown! Go figure I am the only person whom can find the LAST road available to be considered Crazytown!!! Mind you this is 15 miles from my current house in another county!!!


Former HOA President
JeffT2
(Iowa)

Posts:578


12/30/2020 3:09 PM  
Is the declaration from 2016 or later?
MelissaP1
(Alabama)

Posts:9862


12/30/2020 4:01 PM  
It's from June 2020 this year. Development is that new. That is why may ask about the confusion. Plus need more definition by having the Crazy Town address but in the other county. Have no idea what that means in regards to voting or city taxes.

Former HOA President
CathyA3
(Ohio)

Posts:1484


12/31/2020 5:58 AM  
The builder I work for occasionally develops communities that cross county lines. In this case the community is split into two different neighborhoods in our computer systems, and buyers are given paperwork specific to the neighbor they're buying in.

Different counties can have different laws, and in one of our new communities the two neighborhoods are served by different utility companies. So yes, it can get confusing.

People also seem to use the word "Declaration", "CC&Rs" and "Bylaws" interchangeably. As far as I know, the Bylaws address different things and are separate. At least in my part of the world, the Declaration may not include other legal agreements such as easements or maintenance agreements with surrounding property owners. In my mind, these other legal agreements form part of the CC&Rs.

An example: in my community, buyers were not given copies of these additional items even though they contain language about our obligations to pay for maintaining things that are not part of our property. This has come back to bite us. A number of homeowner were upset that these other agreements were not disclosed along with the Declaration and Bylaws, and one threatened to sue the board (of course). According to the association lawyer, though, these additional agreements were recorded with the county which is considered "disclosure".
AugustinD


Posts:4828


12/31/2020 7:15 AM  
Posted By CathyA3 on 12/31/2020 5:58 AM
An example: in my community, buyers were not given copies of these additional items even though they contain language about our obligations to pay for maintaining things that are not part of our property. This has come back to bite us. A number of homeowner were upset that these other agreements were not disclosed along with the Declaration and Bylaws, and one threatened to sue the board (of course). According to the association lawyer, though, these additional agreements were recorded with the county which is considered "disclosure".
For education purposes, can you share the titles of these additional items? Or were these items maybe legal obligations written on the plats for the community?
JeffT2
(Iowa)

Posts:578


12/31/2020 8:27 AM  
Posted By MelissaP1 on 12/29/2020 3:57 PM
That is what I was to have received. That is what is so confusing. One does say "Declaration of CC&R's" but then goes on to say they are to be referred to as "By-laws". The other document labelled CC&R's is the SAME but not with the Declaration. The Articles of Incorporation are slightly different with positions etc... but then turns into the SAME documents as the by-laws/CC&R's.

I do know it has only been filed as of June this year.



HOAs in Alabama that are created in 2016 or later are governed by the Alabama Homeowners' Association Act.

Some answers are in the law, which has a definition of a HOA, declaration, etc.

HOAs must be incorporated and must file Articles of Incorporation, bylaws and cc or r's with the state (Secretary of State), in addition to the declaration which is recorded with the county.

https://law.justia.com/codes/alabama/2016/title-35/chapter-20/
MelissaP1
(Alabama)

Posts:9862


12/31/2020 8:50 AM  
Thank you Cathy that helps alot. Thanks Jeff for posting. Will have to check that out.

Cathy, this is why I always post that CC&R's and Articles of Incorporation are PUBLIC documents. It is viewed as the buyer's responsibility to be "informed". Which means they must get a copy or view the documents themselves. Some states (not all) require the seller to provide a copy before closing. However, not every sale this is possible like foreclosures etc...

So the lawyer is correct that the HOA, builder, Realtor, or Seller* is responsible for providing. (*NOT all states). Having them on file is considered "disclosure". I was surprised the Developer Representative provided me a copy.

CrazyTown is now trying to make it that 55+ communities are being built to slow down the "overwhelmed' schools. So to get incorporated into that city is getting harder. However, builders want the "Crazytown" addresses because of the high demand to be in Crazytown. Go figure I am the one person whom can't seem to escape it! My current house is on one side of the City border. Now the new home is on the other...

Former HOA President
CathyA3
(Ohio)

Posts:1484


12/31/2020 8:51 AM  
Posted By AugustinD on 12/31/2020 7:15 AM
Posted By CathyA3 on 12/31/2020 5:58 AM
An example: in my community, buyers were not given copies of these additional items even though they contain language about our obligations to pay for maintaining things that are not part of our property. This has come back to bite us. A number of homeowner were upset that these other agreements were not disclosed along with the Declaration and Bylaws, and one threatened to sue the board (of course). According to the association lawyer, though, these additional agreements were recorded with the county which is considered "disclosure".
For education purposes, can you share the titles of these additional items? Or were these items maybe legal obligations written on the plats for the community?





I think this will make more sense if I summarize the history of the various plats involved:

Around 2000 a single plat of land was divided into three plats. One of the three now has a strip mall on it. The second has a daycare center. The third is my community. The first two sit along a major highway, with a landscaped entrance leading into the parking lots serving the businesses. There is also a median in the middle of the highway that prevents left turns into and out of the entrance way. The entrance also gives access to our property. Our property has no direct access to the highway - we must use property owned by one or both of the other two plat owners. Plat 2 (the strip mall) has a service road running behind it and sitting entirely within Plat 2. The service road connects the parking lot/entrance complex to public road which intersects the major highway (there is a traffic light here). Anyone who wants to turn left onto the major highway must use this traffic light.

I hope that makes sense.

The agreements:

* One is titled "Reciprocal Access Easement Agreement", document type Easement. This gives homeowners in my community the right to use the service road behind the strip mall to get to the traffic light. In exchange for this, we are responsible for 100% of the maintenance on the road. (This isn't cheap since the road gets beaten to pulp by beer delivery trucks and large trash haulers. It is a source of annoyance to some, especially since the road owner has no way to stop anyone from using it - both ends must remain open to allow the large deliver vehicles to maneuver.)

* The other is titled "Maintenance Modification Agreement", document type Agreement. This provides for shared responsibility for the landscaped entrance area, up to 50 feet in from the highway. Costs are split 25%/25%/50%, with our condos providing the 50%. Note that this area is owned by the owners of Plat 1 (strip mall) and Plat 2 (daycare).

Comments:

These agreements run with the land.

We asked our attorney do some investigating to see whether there would be any way to get out from under the service road agreement - it involves enough money to be a burden, we need to include it in our reserve studies so that the expense doesn't get lost, and in my view it's unfair as written. The businesses in the strip mall do the large majority of damage since the road is not commercial grade, and the owner of the property has no incentive to change this. Shared responsibility for maintenance would be fair.

Our only option would be to legally abandon the easement and tell our owners to use the main entrance only (ie. no left turns) - let the owner of the road try to figure out how to keep us out. Our lawyer's opinion was that the owner could come after us since he could argue that we didn't in fact abandon the easement. I asked how the association could be held responsible for owners' behavior when the owners are off our property, but I never got a good answer to this.

Personal opinion: our developer threw us under the bus when negotiating these agreements. The first one wasn't even recorded until almost half the units in our community were sold, so it was not "disclosed" in any way. Yet homeowners are legally committed to a significant expense by the agreements - which is why I believe they should be considered part of our CC&Rs.
MelissaP1
(Alabama)

Posts:9862


12/31/2020 8:52 AM  
I meant to say NOT required to provide... My autocorrect kicked in...

Former HOA President
AugustinD


Posts:4828


12/31/2020 9:10 AM  
CathyA3, thank you. Interesting. Can you guesstimate what fraction of people's assessment goes, one way or another, to maintaining that one road? I realize that such a guesstimate will have a lot of assumptions. Maintenance is key to getting the most life out of a road. How many feet of road are we talking about?
CathyA3
(Ohio)

Posts:1484


12/31/2020 9:54 AM  
Posted By AugustinD on 12/31/2020 9:10 AM
CathyA3, thank you. Interesting. Can you guesstimate what fraction of people's assessment goes, one way or another, to maintaining that one road? I realize that such a guesstimate will have a lot of assumptions. Maintenance is key to getting the most life out of a road. How many feet of road are we talking about?




This is tough to estimate. The road itself is roughly 300-350 feet in length. It's fairly narrow, two lanes wide - can accommodate two passenger vehicles going in opposite directions, but if there is a delivery truck there you have to go around.

Our last estimate for seal coating the entire thing plus beefing up a few areas that get the most damage was about $45,000 (early 2018). Previous seal coating was done 10 years prior.

The main issue is that the road is not commercial grade, and was never meant to handle the traffic it's currently getting. This means that in addition to seal coating, we need to patch pot holes regularly. This doen't just involve filling the pot holes: the crew has to cut out the damaged area around the pot hole and replace the whole thing. (I learned the word "alligating" thanks to this).

It pro-rates to roughly 2.5% of our operating budget annually. But that's if boards keep up with it, but historically most of them have not done.

To truly minimize future costs, the road should be replaced with a commercial grade surface, but no board member has had the appetite for doing top of line repairs to property that doesn't belong to us. And condo boards usually run tight budgets, which often results in short-term thinking and Mickey Mouse repairs (which of course results in more money spent over all). Our current board seems to be taking the "pretend it's not our problem and it will go away" approach. I fearlessly predict that it will not go away - and that we will have much more expensive repairs (the areas with the most damage are down to dirt in places) and possibly legal action from the owner of the property since we're not adhering to the agreement. This is dumb. Possibly negligent as well.
AugustinD


Posts:4828


12/31/2020 10:09 AM  
Posted By CathyA3 on 12/31/2020 9:54 AM
The road itself is roughly 300-350 feet in length.
Here's my Charlie Brown "Arghhh" to this. To me your explanation of the related conundrums, especially the idea of replacing with commercial grade, equate to a condo's nightmare, insofar as explaining to the membership so as somehow, not to get push back.
MelissaP1
(Alabama)

Posts:9862


12/31/2020 10:37 AM  
Cathy think your channeling one of my concerns with this HOA\development. I've been through this exact situation before. The road isn't wide enough. You have to do a 3 point turn between the curbs. Plus what is worse is they decided to put one of those "Median" flower beds. So a narrow road now splits the road. FYI: I choose the last lot BEFORE the median split. Think it is designed to slow down traffic instead of road humps. So it will make it harder for people to park on both sides of the street by my house.

The road being this width is usually indicative it is IN the county. The county typically will allow developers to build more narrow roads than the city will. Which makes it even more complicated if your ever annexed into the city. Hence another reason making sure documents filed right with county...

My road will be the last road (First built) in the development. Plus the last road in the Crazytown border. Which everything else I will have to go to the County as it is county. It is also Boontown border as well. So it's going to be a headache to deal with in the future I am sure.

What we ended up doing is getting an ordinance with the city to paint our curbs red. We labelled them "No parking" on 1 side of the road. Choosing the side with the fire hydrant to be the no parking side. Which is another thing I made sure my lot was by. It's 2 lots down to the fire hydrant. You can argue with the City or the HOA that it is a danger for emergency vehicles to access if this isn't done. That is how our representative presented it with the fire Marshal to the City to approve.

Former HOA President
CathyA3
(Ohio)

Posts:1484


12/31/2020 10:41 AM  
Posted By AugustinD on 12/31/2020 10:09 AM
Posted By CathyA3 on 12/31/2020 9:54 AM
The road itself is roughly 300-350 feet in length.
Here's my Charlie Brown "Arghhh" to this. To me your explanation of the related conundrums, especially the idea of replacing with commercial grade, equate to a condo's nightmare, insofar as explaining to the membership so as somehow, not to get push back.




We let the membership know about this since it came as a surprise to all of us. I doubt we'll ever replace the road with commercial grade - I'm not even sure myself what we should do since, bottom line, it's not our property.

When we first discovered the problem, we talked to our attorney and I insisted that road repairs be treated like any other reserve item (prior to that, the cost hadn't been anywhere in our budget). The attorney wrote up his findings for the membership, we mailed everyone a copy, and he also attended our next annual meeting to discuss. Surprisingly few had any comments. In fact, I was one of most outraged over it, as anyone who sat in a board meeting with me will verify. :-)

I'm being pragmatic, though. The owner of the strip mall property has deep pockets and "connections" (he builds multi-million dollar homes in area HOAs) - we don't want to get into a legal spat with him because he can afford to tie us up until we're bankrupt. But this is another reason why I believe our developer threw us under the bus - I think he was more interested in "making nice" with a colleague than he was in doing right by members of our association.

It's been an eye-opening lesson. And since these easement agreements and "connections" are pretty common in HOA- and COA-land, I suspect many buyers get unpleasant surprises like this if they don't know to look for them.
AugustinD


Posts:4828


12/31/2020 10:48 AM  
CathyA3, if I were on this board, I think the cost would not bother me as much as arranging for bids and scheduling maintenance and repairs does. I know about the 'gatoring (as in parts of the road start to look like alligator skin) and the potholes in condo parking lots. Poor maintenance practices over the years and a naive board equate to quick fixes that, oh yes, look great the day of the repair. A few months later, the repairs look as bad as the pre-repair 'gatoring.

I hear you about the developers washing each other's hands.
AugustinD


Posts:4828


12/31/2020 10:57 AM  
On the positive side, and just from where I am sitting, at least your attorney remains impressive.

I am pondering often just how to insert a snarl into an upcoming court hearing. Said snarl would be to the effect that, 'Your Honor, the HOA and the HOA's attorney is using the Court, and so the taxpayers' money, to harass. Yes, flat-out harass, your Honor, without evidence to justify its suit. I do not understand how the attorney can call himself a member of the bar. [I got the latter from a judge in one of the Trump lawsuits.] This litigation is not about dotting i's, your Honor. The HOA flatly ignored the three pages of the Rules which say how the Rules are to be enforced. If Your Honor does not order that the HOA actually follow its own Rules and Regulations, then the HOA will continue to burden the courts with this frivolous litigation, and so the cost to both taxpayers and the HOA's membership will continue to escalate.'

I have read enough about CathyA3's HOA attorney (and KerryL1's for that matter) to know they would never pull the stunt being pulled where I am. The da--ed attorney where I am has figured out the Board is dumb and the HOA is a cash cow.

I do not want to hijack Melissa's interesting thread.

Go 'Tide.

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