AlanH2 (Colorado)
Posts: 30
Posts: 30
Posted:
Is it possible for an HOA to enforce a new covenant retroactively
on a condition that was brought to their attention a year previous? There
was no covenant addressing the situation before.
Thanks,
Alan
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Can a new covenant ever be retroactive?
Started by AlanH2 • 21 replies • 6743 views
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Is it possible for an HOA to enforce a new covenant retroactively
on a condition that was brought to their attention a year previous? There
was no covenant addressing the situation before.
Thanks,
Alan
RogerB (Colorado)
Posts: 5,067
Posts: 5,067
Posted:
Alan, an amendment to the Covenants does not become effective until the date it is recorded by the County Clerk and Recorder's office. Anything done prior to that is usually grandfathered. The purpose of grandfathering is so an ignorant Board will not try to enforce previously accepted activities. No court would find for the HOA if they tried to legally enforce a restriction which was acceptable at the time the action occured.
AlanH2 (Colorado)
Posts: 30
Posts: 30
Posted:
Thanks Roger. I thought as much but just wanted your thoughts.
GloriaM (North Carolina)
Posts: 829
Posts: 829
Posted:
Alan:
Could you elborate on exactly what it was that they did?
Could you elborate on exactly what it was that they did?
AlanH2 (Colorado)
Posts: 30
Posts: 30
Posted:
Gloria,
An easement was granted a year earlier by a tract owner for an access driveway. The HOA added a new covenant prohibiting easements this year. They are trying to claim the new covenant is retroactive and the easement from a year earlier is now invalid. The case is in litigation.
Alan
HaroldS1 (Arizona)
Posts: 314
Posts: 314
Posted:
Alan - please let us know how this litigation ends. I think it weird it has even gone to litigation. If covenants can be made retroactive, we are all in for a lot of trouble. Harold
AlanH2 (Colorado)
Posts: 30
Posts: 30
Posted:
I will keep you posted.
Alan
DaleB (Arizona)
Posts: 12
Posts: 12
Posted:
The problem in our HOA is that a number of members believe that amendments to the CC&R's do not take effect for 25 years, which is the end of the term of our CC&R.s. They claim that a civil case, Scholten v. Blackhawk Partners, affirms that. I do not beleive this to be true. I live in Arizona.
HaroldS1 (Arizona)
Posts: 314
Posts: 314
Posted:
Dale - Scholton v. Blackhawk itself was the city of Tucson vs a billboard company. I don't see any case law from that decision that would infer new CC&Rs have to wait until the old CC&Rs expire to become effective. I did find an HOA case where Scholton v. Blackhawk was cited, but that case involved the HOA adding a no rental restriction to existing CC&Rs. Maybe I'm missing something.
Could you please cite how some of your members feel Scholton v. Blackhawk would affect new CC&Rs? Harold
Could you please cite how some of your members feel Scholton v. Blackhawk would affect new CC&Rs? Harold
DaleB (Arizona)
Posts: 12
Posts: 12
Posted:
Harold
This is in Arizona Case law, On the copy I have it has the following, Scholten vs Blackhawk Partners, 184 Ariz. 326 (App. 1995) 909 P.2d 393. I am not sure what all the numbers mean. Someone gave me a copy of this, I did not find it online.
Other info,
No. 1 CA-CV 93-0245
Court of Appeals of Arizona, Division 1, Dept. C
March 23, 1995
opinion was by Judge Weisberg
I am not sure if this will help, but it is a case disputing the time when an amendment to CC&R's would take effect in the Willow Creek Heights Subdivision. I do have a copy of the case.
This is in Arizona Case law, On the copy I have it has the following, Scholten vs Blackhawk Partners, 184 Ariz. 326 (App. 1995) 909 P.2d 393. I am not sure what all the numbers mean. Someone gave me a copy of this, I did not find it online.
Other info,
No. 1 CA-CV 93-0245
Court of Appeals of Arizona, Division 1, Dept. C
March 23, 1995
opinion was by Judge Weisberg
I am not sure if this will help, but it is a case disputing the time when an amendment to CC&R's would take effect in the Willow Creek Heights Subdivision. I do have a copy of the case.
NancyD1 (Florida)
Posts: 447
Posts: 447
Posted:
The ruling reads " The rule against perpetuities does not apply to deed restrictions. If there is no amendment provision in the deed restrictions, the deed restrictions can only be amended by agreement of 100 percent of the property owners governed by the deed restrictions."
It cannot be retroactive.
It cannot be retroactive.
DaleB (Arizona)
Posts: 12
Posts: 12
Posted:
By deed restrictions do you mean CC&R's? Are you referring to the ruling in Scholten?
Our CC&R's do have an amendment procedure.
Our CC&R's do have an amendment procedure.
RogerB (Colorado)
Posts: 5,067
Posts: 5,067
Posted:
Quote:
Posted By NancyD1 on 09/15/2007 9:11 AM
The ruling reads " The rule against perpetuities does not apply to deed restrictions. If there is no amendment provision in the deed restrictions, the deed restrictions can only be amended by agreement of 100 percent of the property owners governed by the deed restrictions." It cannot be retroactive.
The ruling reads " The rule against perpetuities does not apply to deed restrictions. If there is no amendment provision in the deed restrictions, the deed restrictions can only be amended by agreement of 100 percent of the property owners governed by the deed restrictions." It cannot be retroactive.
This may be dependent on the State statutes. In Colorado an HOA can go to court to amend certain CC&Rs (deed restrictions) if necessary when the 2/3 approval of homeowners specified by state statute (CCIOA) can not be achieved.
HaroldS1 (Arizona)
Posts: 314
Posts: 314
Posted:
Roger - do you mean in Colorado if an HOA does not get the required percent of homeowners to approve a CC&R addition or revision, the board can go to court and get it approved? On what grounds would a court approve it? They woule be bypassing the "contract" if they approved it, yet all courts hold homeowners to that "contract" as being sacred. If that is the case, why would any Colorado HOA go to the members for approval of a CC&R change? Just go to the court. Harold
RogerB (Colorado)
Posts: 5,067
Posts: 5,067
Posted:
Harold, the answer is yes an HOA can go to court. It would be up to the HOA to convince the judge the circumstances and the percentage of the owners approving a necessary change is justified. Since SB05-100 was passed which nulified certain Covenant restrictions I can not provide an example. Prior to that one example is when an HOA required 90% approval to amend the CC&Rs and after 3 years, due to people constantly moving or not available, it was obvious this could never be achieved even though almost all available owners approved of the proposed amendment. Meanwhile, the Covenants required cedar shake shingles and the County had outlawed the use of these materials.
Why not go to court? Much more expensive and I would guess there is less chance of approval.
Why not go to court? Much more expensive and I would guess there is less chance of approval.
NancyD1 (Florida)
Posts: 447
Posts: 447
Posted:
Dale, I did quote the ruling from the Scholten vs Blackhawk case you cited. It was a Civil case 93-0245. It was handed down in 1995, so any other legislature since then may apply.
The initial suit "deed restrictions have no expiration period and no provision for amending the deed restrictions. Do the deed restrictions violate the rule against perpetuities. How can the deed restrictions be amended?"
The rule against perpetuities does not apply to deed restrictions as per Scholten vs Blackhawk.
The initial suit "deed restrictions have no expiration period and no provision for amending the deed restrictions. Do the deed restrictions violate the rule against perpetuities. How can the deed restrictions be amended?"
The rule against perpetuities does not apply to deed restrictions as per Scholten vs Blackhawk.
DaleB (Arizona)
Posts: 12
Posts: 12
Posted:
Nancy Sorry I do not understand all the language. Our initial term for our CC&R's is 25 years and we do have provisions for amending our CC&R's. So it sounds like S vs B does not apply to our circumstances and we can amend our CC&R's. Correct?
HaroldS1 (Arizona)
Posts: 314
Posts: 314
Posted:
"Meanwhile, the Covenants required cedar shake shingles and the County had outlawed the use of these materials." Roger - are you saying an HOA would be justified spending member funds going to court just to change the CC&Rs to conform to county law? I would hazard to guess every HOA in the country has regulations that are in conflict with some county, state or federal law. Most don't even bother to try changing one of them until a major overhaul is attempted. They should know they just cannot enforce that particular covenant. I would be screaming if my board spent our funds going to court just to make such a change. Harold
RogerB (Colorado)
Posts: 5,067
Posts: 5,067
Posted:
Quote:
Posted By HaroldS1 on 09/16/2007 12:00 PM
"Meanwhile, the Covenants required cedar shake shingles and the County had outlawed the use of these materials." Roger - are you saying an HOA would be justified spending member funds going to court just to change the CC&Rs to conform to county law?
"Meanwhile, the Covenants required cedar shake shingles and the County had outlawed the use of these materials." Roger - are you saying an HOA would be justified spending member funds going to court just to change the CC&Rs to conform to county law?
No Harold, I'm saying in order to put on a new roof when the Covenant that only cedar shakes are allowed and the County has outlawed cedar shakes the Covenants need to be changed to allow a different roofing material.
GloriaM (North Carolina)
Posts: 829
Posts: 829
Posted:
Alan:
Then the easement that was granted cannot be taken back and if the board now wanted to make easement restrictions in the CCR's, it would have to be passed by the majority vote in your CCR's. The board cannot just change what is written without going through the amendment process, nor take back what was approved a year earlier.
Then the easement that was granted cannot be taken back and if the board now wanted to make easement restrictions in the CCR's, it would have to be passed by the majority vote in your CCR's. The board cannot just change what is written without going through the amendment process, nor take back what was approved a year earlier.
LukeA (Texas)
Posts: 11
Posts: 11
Posted:
Rodger if the covenant in Harold's case, that requires only cedar shakes, that has been outlawed by the County (the higher authority) doesn't the higher authority (the County's Law) against shakes cancel out the covenant(the lower authority)requiring them? If so then why spend money on changing the covenant that the County has negated?
RogerB (Colorado)
Posts: 5,067
Posts: 5,067
Posted:
Quote:
Posted By LukeA on 09/22/2007 7:48 PM
Rodger if the covenant in Harold's case, that requires only cedar shakes, that has been outlawed by the County (the higher authority) doesn't the higher authority (the County's Law) against shakes cancel out the covenant(the lower authority)requiring them? If so then why spend money on changing the covenant that the County has negated?
Rodger if the covenant in Harold's case, that requires only cedar shakes, that has been outlawed by the County (the higher authority) doesn't the higher authority (the County's Law) against shakes cancel out the covenant(the lower authority)requiring them? If so then why spend money on changing the covenant that the County has negated?
Yes, the County overrules the Covenants and that is what created the problem. The Covenants only allowed cedar shakes to be used; no other roofing material was allowed by the CC&Rs. Neither the ACC nor the city of Westminster, CO zoning department, who used the Covenants as a guideline, could approving any roofing requests. So no roofing material could be approved. Finally, SB05-100 resolved this problem when the state statue lowered the approval required to amend the CC&Rs from their 90% to 67% of all owners.
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