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CharlesS11 (Georgia)
Posts: 6
Posted:
The Association is still under control of the Declarant, the sole Class B Member. Yesterday, the Declarant's website has only one page, stating that the company "...has ceased operations effective October 29, 2010."
The Covenants define the Declarant as:
"Declarant": , a Georgia corporation, or any successor,
successor-in-title, or assign who takes title to any portion of the property in the Community for
the purpose of development andlor resale and who is designated as Declarant in a recorded
instrument executed by the immediately preceding Declarant. There shall be only one Declarant
at any time.

So, the question is, as of today, who is the Declarant? If there is none, what process should the Association Class A Members, i.e. the homeowners, undertake to gain legal control over the Association?

Thanks.
SusanW1 (Michigan)
Posts: 5,202
Posted:
Got Lawyer?
You need to find out if the declarant's assets are being liquidated.

CharlesS11 (Georgia)
Posts: 6
Posted:
Working on it. The question before us now is who is the Declarant in the interim, i.e. before all of the court action begins, possibly.
SusanW1 (Michigan)
Posts: 5,202
Posted:
What court?

I'd say you are in limbo right now unless you can get a judge to assign someone to act in the interest of the homeowners. Even then, the declarant is still in control.
CharlesS11 (Georgia)
Posts: 6
Posted:
Nothing is filed yet, this only happened yesterday, so you are right about the limbo thing.
I'm afraid you are also correct that the Declarant, until it assigns its rights, is still in control, whether it abdicates its responsiblity or not. Happily, dues are annual, not monthly.
MaryA1 (Arizona)
Posts: 388
Posted:
Charles,

Why not call the declarant's office and try to speak to him. If the co. has ceased all operations the BOD needs to know who is taking care of operating the assn, i.e. paying the bills. Also, what is happening to the HOA's bank account? This is not something you want to wait to find out about until after the bankruptcy court has ruled and appointed another declarant. In the interim the declarant could drain all the assn's monies from the bank account with all sorts of bogus expenditures.
CharlesS11 (Georgia)
Posts: 6
Posted:
Good morning Mary. The concerns you raise are mine also. Currently a management company, engaged by the Declarant, operates the Association. They speculate that the bank will ultimately sell the lots to another builder, and as part of that deal, the new builder will become the sole Class B Member, i.e. the new Declarant. This is provided for in the Covenants, and is probably the best case sceanario. The worst case is what you bring up, Members defaulting on the annual assessment the next time around, etc.
Note: this is not my HOA, thank goodness, but rather that of a friend of mine. I'm an HOA Board President in an Association of about 410 single family residences in Atlanta. We took control of our Association over a decade ago, and I had no experience with that phase of operations, hence my seeking input here. I've also got my own management company (a different one from the one that manages this association) and our attorney looking into this.
We just have to hope it doesn't get ugly. Or uglier.
JerrellC (Florida)
Posts: 83
Posted:
Charles I agree with Mary However I think the BOD should demand an audit of all the financial records to clarify all expenses by the management company an what the company has paid the declarant back for seven years or the commencement on the development whichever is shorter. You may find some surprises in several areas of unexplained expenses. Here in Florida there has been many shenanigans in the management companies and BOD's in several HOA's. just click on ccfj.net an organization for homeowner's and condominium's rights in Florida. FYI JerrellC florida.
CharlesS11 (Georgia)
Posts: 6
Posted:
Thanks Jerrell. This is a rather large home builder who is the Declarant. As the sole Class B Member, it reserves the right to appoint the Board, and there is no Board. So, the Board cannot demand anything. However, I'm waiting on advice from counsel as to how to proceed, but I think it would indeed be wise to do as you suggest. Regrettably, it may be a 'getting blood out of a rock' scenario, so what any lawsuit would hope for is injunctive relief and ceding some control to the 90 or so homeowners in residence.
The next question is, what should the Class A Members, the homeowners, do when the next quarterly assessment installment is due? My thinking is that they should pay into an escrow account, appoint someone Treasurer, and make all checks two-party checks, i.e. payable to the management company AND the garbage hauler, or the management company AND the landscaping service. This would not be a horrible contravention of the covenants, and although technically perhaps a violation that could be seen as a cause of action, where are the damages? I think lawsuits must have both elements.
JerrellC (Florida)
Posts: 83
Posted:
Charles, Another question I have is your subdivision built out already or is there other lots to be built on? Has the declarant turned over the HOA to the homeowners yet. Is this date the end of his responsibilty and control over your HOA? This also may be a reason why he is getting out from any other requirements in the amenties that he promised to build. Is there a bond that he had to put up for the development? You say its a ten year project. Thats a pretty long time to complete a development. I just wondered. FYI JerrellC Florida
CharlesS11 (Georgia)
Posts: 6
Posted:
There are probably 40% of the total lots still to be built upon Jerrell. And no, the declarant has not turned the HOA over to the Membership yet, this is the crux of the problem. As to your other questions, I think I may not have written clearly in one of my earlier replies. I meant to explain that this is not the subdivision that I personally live in; my subdivision has been built out for over a decade. And, the development in question has the amenities package already built.

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