Restrictive covenants do not require mandatory dues but Association made dues mandatory

Our restrictive covenants (RC) do not require mandatory dues from the residents. The RC only requires the residential assocation (RA) to appoint the Architectural Control Committee ACC. The RA has ammended their bylaws and made dues mandatory for all residents. Can the RA enforce this requirement if it is not mentioned in the RC?

Glenn,

Actually to change from a voluntary to a mandatory HOA may require a 100% vote of all property owners. If there is no case law in AL for this issue, it may require going to court to fight this change. But, at any rate, the change cannot be made by just amending the bylaws especially if that can be undertaken w/o a vote of the members. The proper document to amend would be the CCRs not the bylaws.

BTW, exactly what do the amended bylaws say regarding dues? Are dues required to be paid by all property owners or just by members of the HOA? There could be a big difference. If the HOA was voluntary then every property owner may not have been a member of the HOA.

What possible expenses could a Architectural Control Committee have that they would need to charge dues?

I get is now. The RA as you call it (most of us call it a home owners association HOA) is on your deed and therefore mandatory. They have never charged dues, but now they want to start. You may need advice of a lawyer, sometimes an association can start charging dues, sometimes they cant. A judge usually decides. Because you "are" in the association, its on your deed, it doesn't look good. I think the best you can do is get all the homeowners together, and run for office and vote for no dues. If you control the officers positions, your success will be greater.

PS. The details of the Architectural Control Committee ACC doesnt really mean anything, its just an arm of the association (RA).

No dues(necessarily)required... just have an application fee to cover expenses.

If the CCRs go with the deeds and have established committees, then the bylaws would flesh out HOW all this could be done, including establishing funding to carry out the mission of the corporation. That would include a source of funding, i.e. membership dues.

Mary,

Glenn actually said that per the Articles of Declaration membership consists of owners in a specific neighborhood. This tells me that Association membership is mandatory.

Glenn also says that the bylaws provided for assessments to be paid on a voluntary basis and that the membership then amended the bylaws to make any assessments mandatory.

Based on this understanding, as long as the bylaws were properly amended (notice given, quorum present, percent of ballots said yea), then the process was done legally.

Now as I understand the thread, Glenn is also saying that since the Covenants control and the covenants do not require assessments to be mandatory.

Glenn -

Very Important - What is the language in the Covenants that talks about assessments (please post that section).

If the Covenants specifically say that the assessments are voluntary, then there is a conflict and the Covenants would control (that is over rule the bylaws).

However, if the Covenants don't specifically address assessments or has language that allows assessments but fails to address if they are mandatory or voluntary, then there is no conflict and the bylaws would control.

I, and others, have not seen the actual documents. My opinion is based on the information contained in your posting as you interpret your documents. If the documents were made available or if the language within those documents were posted, opinions and advise given may change. With any legal document it tends to boil down to what is actually written and how it is written.

Tim

Why would the original bylaws say that membership support is voluntary?

If there are common areas, then SOMEONE has to maintain them - and that takes funding.

There would be a flaw in the bylaws if there was no way to carry out the mandate of the CCRS.

Kind of like unfunded mandates, dontcha think?

I'd like to ask what the PURPOSE statement is in the bylaws. Most bylaws have a listing of their function and their duties.

Susan,

IMO, there is no reason why a voluntary assn cannot own common areas which must be maintained. Although this is usually the reason why a mandatory HOA is formed. Although this is not the case here, I'm sure there are some voluntary assns that were once mandatory and own common areas.