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Subject: What is a valid CC&R
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PatriciaC14
(Washington)

Posts:4


11/21/2021 6:18 PM  
Our HOA has CC&R's which have a County Recorder's registration dated 2001. They show up on my Title Report. However, the HOA website has updated versions with no County Recording from 2015 and 2020. Neither of these, on the HOA website, appear to be signed by the Trustees, or recorded at the County. They do not show up on my Title Report, either. The HOA people refer to the 2015 and 2020 updates as the current CC&R's. Can they enforce the provisions of the updated versions? If not, how do they bring the CC&R's into compliance? Thank you.
MelissaP1
(Alabama)

Posts:10584


11/22/2021 4:21 AM  
I would go down to the County office to get a copy. That is the one officially recorded. After that is confirmed, then you READ them to see what the process is. The process of updating and filing CC&R's, By-laws, and Articles of Incorporation is in the documents themselves. Each one takes a different voting percentage. Some as little as 51 % to 100% of the owners.

This is not going to be cheap. Plus going to be very time consuming. There is a filing fee. Plus would not do this without a lawyer. One that would specialize in contractual type laws or HOA's. Expect to spend 5 - 7K on the entire process. That may include providing new copies.

It should be noted that By-laws are NOT required to be recorded in many states. So don't confuse the two. By-laws are usually internal documents. The others are County for CC&R's and State for the Articles of Incorporation.

I would set up a committee for this if it was me. It's a HUGE process that best to tackle as a group.

Former HOA President
CathyA3
(Ohio)

Posts:2588


11/22/2021 5:53 AM  
CC&Rs have to be recorded to be legally binding, so do check with the county recorder's office. It's possible that the recorder's web site is not up to date, but it's also possible that the association is working from versions that were never recorded and are not enforceable.

In addition to checking with the recorder, since you know the approximate dates of when the newer versions were put into place, you can check association documents such as board meeting minutes for those years. You're looking for evidence that the changes to the CC&Rs were approved by homeowners. Usually such changes require approval from a super-majority of owners (67% or 75%). No vote = no approval = the changes are not valid even if they were recorded. One exception for this: if the changes were simply to bring the CC&Rs into compliance with current state law, then the board very likely had the authority to approve them without homeowner vote. State law supersedes the CC&Rs unless there is something in a particular provision that defers to the CC&Rs. (Our board approved such an amendment a few years ago, but the new version was still recorded.)

So you have to do some research to know what you're looking at and whether or not there is an issue.

If you find out that there is, the question becomes what to do about it.

You could start with a formal letter to the board stating that you have found no evidence that the newer versions of your CC&Rs were approved by homeowners and/or recorded with the county, stating that you believe that these newer versions are not legally valid, and asking for clarification.

If you're lucky, that will get the ball rolling, If not, then you may need to bring in bigger guns (ie. lawyers). This is time consuming and can get expensive for you personally and the association. Also, if you're intending to sell your home any time soon, be aware that active litigation can really put a damper on home sales.

I'll end with my usual advice for any association controversies. Your options always boil down to fix it, live with it, or move. Easily stated, but it can be difficult to figure out which option is in your best interest.

AugustinD


Posts:1905


11/22/2021 5:54 AM  
From an earlier thread by the OP, this is a roughly 100 lot HOA.

Posted By PatriciaC14 on 11/21/2021 6:18 PM
Our HOA has CC&R's which have a County Recorder's registration dated 2001. They show up on my Title Report. However, the HOA website has updated versions with no County Recording from 2015 and 2020. Neither of these, on the HOA website, appear to be signed by the Trustees, or recorded at the County. They do not show up on my Title Report, either. The HOA people refer to the 2015 and 2020 updates as the current CC&R's. Can they enforce the provisions of the updated versions? If not, how do they bring the CC&R's into compliance? Thank you.
From looking at the HOA statutes for Washington, I think you have to ask an attorney. In preparation for any meeting you have with an attorney, I suggest considering the following:

-- Are there any signs that owners voted to make the HOA subject to the Washington Uniform Common Interest Community Act (WUCIOA) which became effective on July 1, 2018? If so, this is good. The WUCIOA requires that amendments be recorded before they are effective. For help determining whether there was an owners' vote to make the HOA subject to WUCIOA, see https://www.carmichaelclark.com/news/is-your-community-a-wucioa-community/ and https://app.leg.wa.gov/RCW/default.aspx?cite=64.90.095

-- Washington's older HOA statute does not have an express requirement for amendments to be recorded. However, case law in Washington might very well say that amendments to the Declaration must be recorded to be effective.

-- You can call the County Clerk and ask what they know about recording amendments to the Declaration.

-- When you bought your home, and before closing, did the seller disclose the 2015 and 2020 amendments? Did you sign anything acknowledging receipt of these amendments?

-- Is their documentation that the amendments were approved by a proper vote of owners, pursuant to the requirements for amending in the Declaration?

-- I do see sites like the following that say the amendments must be recorded to be valid.

-- It is possible that all the HOA has to do to make the 2015 and 2020 amendments valid is record them.

-- It is possible that some issues that would be violations under the recorded 2015 and 2020 amendments may be grandfathered in. I would rather not get into this now until a specific dispute is described, where application of the un-amended CC&R translates to no violation, but application of the amended (and presumably recorded) CC&R translates to a violation.
AugustinD


Posts:1905


11/22/2021 5:55 AM  
Posted By AugustinD on 11/22/2021 5:54 AM

-- I do see sites like the following that say the amendments must be recorded to be valid.

https://ams-nw.com/ufaqs/how-can-the-ccrs-be-changed-or-amended/
PatriciaC14
(Washington)

Posts:4


11/22/2021 8:35 PM  
Thank you so much for this valuable advice. This will help me line up the ducks for an attorney review.
MaxB4
(California)

Posts:1594


11/22/2021 8:41 PM  
Here are three steps needed to properly amend CCRs to be enforceable.

1) The requisite approval of the percentage of owners as required by the governing documents has been obtained,
2) Written certification of the approval by an officer of the association, and
3) Recordation of the amendment
JohnC46
(South Carolina)

Posts:11659


11/23/2021 9:22 AM  
Posted By MaxB4 on 11/22/2021 8:41 PM
Here are three steps needed to properly amend CCRs to be enforceable.

1) The requisite approval of the percentage of owners as required by the governing documents has been obtained,
2) Written certification of the approval by an officer of the association, and
3) Recordation of the amendment



Sounds right to me.
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