Developer unilaterally reinstating disolved HOA

We purchased our home in 2005 in a new community and signed HOA documents. During closing, we paid our first year's HOA fees. During the following 2 years, the developer never enforced any of the restrictions, etc. Would not even respond to permission requests for things such as fences, decks, etc. We also never had a place or person to send the following years' dues. Noone in the community paid dues following the closing of their purchase.

In 2007 "someone" hired a management company who then billed us for the past two years. That fell through and the management company never took control. Within months after that, we received a letter from the developer dissolving the HOA and returning our original payment to the HOA. Most people in the development received their refunds, some did not. Since then, all homes sold have been informed that there is no HOA and no dues have been collected at closing.

This week, we have all received registered letters from the developer calling a meeting of the HOA.

The agenda states that there will be discussion re turning over the maintenance of the roads and the snow removal over to the HOA. Well, there is no HOA! He dissolved it! The building in the development is not complete. The builder actually pulled out and no new builder has come in to take over in the development, but the developer put a prefab home on one of the empty lots that had not been sold to the builder. There are at least 100 additional lots that still are standing empty. There are approximately 60 built. It states in the HOA docs that the developer gets 3 votes for each of his lots. But again, he dissolved it! Please tell me he cannot just unilaterally reinstate it.

My issue is not that I dont want an HOA, its that the building is not done, the road has not had its final coat, yet he wants to turn it over to us to maintain when he and the builder (finishing a couple lots) are still running construction equipment up and down them. Our other issue is that we are not at his beck and call. I cant believe that he just gets to decide when and if we have an HOA and we have no say. Some people moved in here with the understanding that there was no HOA at all. So we have been here for years, put up fences which dont conform to the previous restrictions, people have boats or RV's that they have been parking here for years. How can we revert BACK to those old restrictions when we havent been following them for the last 4 years?

I know why he is doing this, since there is no HOA, he is responsible for plowing during the winter, and he doesnt want to pay for it any longer. Which is fine, but the way he is going about it is wrong.

So, my question is where do I start? Other than going to the meeting and saying, 'uh, hello, we have no HOA." As far as local govt, who do I call to complain?
We are in Berkeley County WV.

There is, but the development has completely fallen apart. There are more than 100 houses that are not going to be built, or dont seem to be, because the builder pulled out. So there are still 100 empty lots and only 60 lots with homes.

The developer has 3 votes per lot and we have 1 as homeowners.

Can you explain WHY we are going to be held responsible and we just have to get used to it. You sound like my developer, not someone trying to help educate me on the issues.

IS this a gated community? When the builder dissolved the HOA who was maintaining the common areas? Were they deeded back over to the county? Did the Builder follow the proper legal aspects with respect to dissolving?

No, this is not a gated community. The developer has been "maintaining" the roads, which at this point only has been plowing in winter. I dont believe anything was deeded to the county. All we received from the developer was a letter stating it was dissolved and our payments returned.

The other part of the story is that the original "Bentwood Estates " was built oh, say 15 years ago, 10 years or so before our was built, on the same road, directly behind them. We are a different builder, smaller lots, different house types. The developer had fully turned over the HOA to them. They had it up and running and fully functioning. When he developed the land behind them and called it by the same name, he tried to tie us in to THEIR HOA, all of our docs, CCR's and everything are just copies of THEIRS, but they refused to allow us to become a part of their HOA. They had a contract to plow and would only plow up to the beginning of where our homes started. Which, is legal, we were not a part of their "development" But I cant even say for sure that we are one in the same. Which is why I believe he "dissolved" our HOA to begin with.

So, even though the new buyers have purchased under the condition that there is no HOA and never signed or received CCR's, they now have to be a part of the HOA?

Can we vote NOT to have an HOA?

So if we go get a lawyer, who pays for that? I sure as heck dont have the money to pay a lawyer.

Terri, as others have stated it is unlikely that the HOA was dissolved regardless of what might have been sent before. More than likely the local Zoning Board required the HOA before they would allow the developer to build and there is probably language on the deed binding you to the HOA. Nor can the owners decide to ignore the HOA whether they want to or not, you are all responsible for the common properties, no matter how small. If anyone were to be injured on them or killed each and every homeowner could be sued separately.

You need to get your neighbors together and collect a few bucks from each and hire an attorney versed in property law and what ever you do no homeowner should except responsibility of the HOA without legal advice. You might also check with the Zoning Board as most require builders to post bonds to pay for things like roads if they do not complete them. If the builder gets released by the homeowners he could conceivable get his bond back leaving everyone holding the bag.

The builder will no doubt have an attorney handling his side of the equation - the homeowners need one too. There is an old saying: "If you can't dazzle them with brilliance, baffle them with bulls**t." This is doubly true when an attorney is involved because depending on how it is worded you can think you are getting one thing, when in reality you just gave away the very thing you thought you were getting.

Terri,

What you don't seem to understand is that the HOA and the deed restrictions are two separate issues. The deed restrictions are attached to and run with the land; they do not go away unless they are physically removed from your deed. If you take a look at your deed, it should say something to effect that it is subject to deed restrictions, which are the CCRs.

The CCRs should state whether or not there should be an HOA to enforce the deed restrictions and maintain the common elements which would be the roads and any greenbelt areas and/or water retention basins and also whether the HOA is mandatory or voluntary. These common elements are owned by the HOA. Unless the Co/Township/City agreed to take ownership of these areas the HOA could not legally be dissolved. It could be that the developer just decided he didn't want to be bothered with collecting assessments and maintaining anything anymore and declared the HOA dissolved. As long as he has unsold lots and his 3 votes per unsold lot out number the one vote of each sold lot then he still has control of the assn and can say it's no longer dissolved. Even if some people bought homes there and were not told about the HOA does not mean they are not bound to it. The CCRs runs with the land and whatever they say is legally enforceable whether the property owner knew about them before purchasing or not. Just the fact that the property was purchased makes the owner liable for what is written in the deed restrictions. If the CCRs say mandatory HOA these property owners don't have a leg to stand on. At least that's my opinion.

You should thoroughly read the CCRs to find out what they say about a mandatory HOA. Also look at the provision which talks about transition. That should be under the membership article that talks about Class A members (the property owners) and Class B members (the declarant). It should state when transition occurs, which generally is when the votes of the Class A members out number the votes of the Class B member. Some CCRs also give the declarant the option to transition whenever he chooses. It would behoove you to thoroughly know and understand the CCRs. Perhaps the property owners may want to get together and chip in some $$$ to hire an attorney who could give them a synopsis of what the CCRs say and also some advice regarding the dissolution and reinstatement of the HOA.

You stated there are a number of restrictions that have been violated over the years. Once transition occurs and the members take over, the board of directors can decide to start enforcing the CCRs. Those members who are in violation can be grandfathered or they can be issued violation notices and be required to conform -- whatever the board decides is best. On the other hand, the CCRs could be amended to delete those restrictions which the members feel they do not want to abide by, i.e. the ones that may account for the most violations.

Ok, I think I am getting it. We are stuck with it. lol! No, really, I am ok with having an HOA, actually, more than OK. We would not have bought a house in WV without an HOA and we were pretty mad when the developer didnt enforce the CCR's and then "disolved" the HOA. No, really, what makes me mad is the developer jerking us around all the time. I am just concerned with other people's reactions who didnt have any idea that they were buying into a community with an HOA.

The voting rights are as follows, class A for for homeowners each one vote. Class B for the developer, three votes for each lot in which he holds interest. The CCR's say that Class B converts to Class A when the total votes outstanding in the Class A equal the total votes outstanding in the Class B. There is no other provision for him handing it over to us. Again, there are more than 100 lots still open and only around 60 filled. So can he actually turn it over to us if there is no provision for him to do so without the class B equalling the class A?

As far as if the HOA is voluntary or mandatory, the CCR's dont say, it just says the developer has incorporated as a non-profit, blah blah blah, Association...etc. I guess that makes it mandatory!

Thanks for all of your help, I really really appreciate it!

Yes, that would mean the HOA is mandatory then. Gotcha!

There are 60 houses built and occupied. There are 3 or 4 builder owned spec homes that are still unoccupied. There are an additional 10 empty lots, without houses, that the developer has for sale individually, and another 100 or so lots that are sitting empty with nothing happening at all. Those sections of the development have not been opened. There is water, sewer and roads out to the lots but that is all. They are not open to purchase or build upon.

Originally Dan Ryan had the rights to purchase all sections of the community, each section opening one at a time, but the developer raised the lot prices on him so Dan Ryan pulled out of the development and is only finishing the last couple of houses. (which has taken 6 yrs since the market is in the toilet) The developer put one prefab house on one of the lots he had for sale individually, and the rest are still up for sale. So I guess the question is, Do all of the empty lots count towards his votes, or only the ones currently up for sale?

My CCR's dont say "...at such ealier time as the Declarant shall designate...."

Terri,

If the plats for those new, unopened sections are a part of your CCRs then those lots would count. It could be that they have not been added yet, so at this point they would not count. At any rate the answer would be found in your CCRs -- also look for any amendments to the CCRs to add new plats.