I continue to gets calls and e-mails from new people every day asking for help with their associations. The stories are painful to listen to, and while I can help with some, others I simply cannot help. Their only recourse is thru the courts. In those cases I recommend legal counsel. Some common themes lately involve the CC&R’s or Declaration. I thought I’d take the opportunity to reinforce same basic points about CC&R’s that are very important for all of us to remember.
- The CC&R’s are the sum total of the covenants that run with the land. The only power the board has is what is specifically authorized in the CC&R’s.
- The only restrictions that the association can place on free and unhindered use of the land must be clearly specified or authorized in the CC&R’s. Any ambiguity or lack of clarity will result in free and unhindered use of the land.
- The Articles of Incorporation are subject to the CC&R’s and any conflict between anything in the Articles and anything in the CC&R’s the CC&R’s prevail.
- The Bylaws are subject to both the Articles and the CC&R’s anything in the Bylaws that contradict with the Articles or the CC&R’s than either the Articles or CC&R’s prevail.
- The association is allowed to generate rules only if the CC&R’s specifically authorize those rules. If the CC&R’s are silent on the ability to create rules than only rules that protect the common property may be implemented, based on the Duty of the Board to protect the common property.
- No rule is allowed to be implemented that contradicts with any provision of the Bylaws, Articles or CC&R’s. Any rule that does is invalid and unenforceable.
- Never ever take any proposal to modify the CC&R’s lightly. This change will impact you and everyone in your community forever. Do this very carefully and with deliberate thought.
- If you believe that the association or the declarant has changed the CC&R’s illegally or in an illegal manner consult a lawyer immediately. If challenged in a timely manner the CC&R change can be overturned in court.
- Even if the CC&R’s specify that normal changes to the CC&R’s need approval by a super majority of the members whatever that percentage is, some changes that materially alter the expected uses of the land and property from the original language will require unanimous consent of all owners to implement. The ability to lease homes or units is an example of this. If the original are silent on lease restrictions then any attempt to impose lease restrictions either long term or short term would require unanimous consent of the owners. If in doubt seek legal advice.
- Statute of limitations apply to everything that an association can do. So if you think that something smells fishy it probably is and seek legal advice in a timely manner or you may forever lose your ability to challenge even blatantly illegal actions by the associations or declarants. Interestingly there are no statute of limitation on the ability of the association to cite violations on a homeowner.
- Never ever vote to make a voluntary association mandatory. There is a reason that they are trying to do that and it will never be good for the homeowners and all future homeowners.
If you have any questions on any of these points or issue feel free to contact us at firstname.lastname@example.org, we will provide our experience on the issue or direct you to legal counsel as appropriate.
On the last bullet point — one call I got last week involved a homeowner in a community that for 30 years had a voluntary HOA. This homeowner did in fact pay the voluntary assessments as part of simply being a good neighbor; he loved his community, and was willing to help pay for the support of that community. One day the association asked all the homeowner to vote to make the association mandatory. The understanding is that they needed 100% of the community to agree to make this happen. This person voted to make the association mandatory because he did not want to be the only vote against it if everyone else wanted it. Big Mistake. Only 2/3 of the community approved the vote. Soon afterward the homeowner received a notice from the association that because he voted for a mandatory association they were going to modify his deed to make his property forever a mandatory member of the HOA. In the same note the association told him that they were not happy with how the county was maintaining the roads so the association board decided to take over the roads and maintain them themselves. He was immediately assessed a $20,000 assessment as his share of that cost. This notice went to everyone that vote to make the HOA mandatory. And not to anyone that voted no. His only recourse now is to seek legal relief and try and get the vote overturned and reversed. All of that could have been prevented with a simple no vote.