CCR interpretation

I need help interpreting the following articles of our CCR's. I am currently the Vice-President of a small association in Delaware consisting of 53 homes. The BOD would like to make changes to some of the restrictions with the approval of the community but we are unsure if this is possible due to possible restrictions in the language of the CCR's. We accepted control of the association from the Declarant (builder) 3 years ago. The builder currently owns 4 empty lots.
Do we have to wait until December 4, 2013 as indicated in section 21 or can we go ahead with our changes because section 24 releases the Declarant's rights after he transferred the association to us?

I apologize in advance about the size of this thread but I felt it was better to include the section of our CCR's applicable to my question. This forum has been of great help to me in the past and I thank everyone for their knowledge, expertise and willingness to help.

1. These covenants, agreements and restrictions are to run with the land and shall
be binding upon the Declarant, its successors and assigns, and all persons
claiming under them, until December 4, 2013 at which time said covenants,
agreements and restrictions shall be automatically extended for successive
periods often (10) years each, unless the then owners of more than (67%) of
the said lots terminate them in whole or in part, by appropriate instrument
duly executed and recorded.

21. Anything herein contained to the contrary notwithstanding, the Declarant
hereby expressly reserves the right at any time to change or modify any of the
restrictions, conditions, covenants, agreements or provisions of the lots
contained herein or shown upon said Plan. In addition, the owners of more
than (67%) of the said lots may change, modify or amend the restrictions
contained herein at any time, by appropriate instrument duly executed and
recorded, provided, however, that so long as the Declarant is the owner of any
of the said lots or open space or any other portion of XYZ
Homeowners Association INC, this Declaration may not be changed, altered,
modified, amended or extinguished without the written approval of the
Declarant.

24. Any or all of the rights and powers, titles and estate reserved or given to the
Declarant in this Declaration may be assigned to any one or more individuals
public governmental bodies, corporations or associates that will agree to
assume said rights, powers, duties and obligations and carry out and perform
the same. Any such assignment or transfer shall be made by appropriate
instrument in writing to which the assignee or transferee shall join for the
purpose of evidencing its consent to the acceptance or such rights an powers;
and such assignee or transferee shall thereupon have the same rights and
powers and be subject to the same obligations and duties as are herein given
and assumed by the said Declarant, the said Declarant thereupon being
released therefrom.

John, thanks for your reply.
Doesn't section 24 release control of the association from the declarent to our HOA and if it does do we still have to wait until December 2013 to make changes?

Section 24. Any or all of the rights and powers, titles and estate reserved or given to the Declarant in this Declaration may be assigned to any one or more individuals public governmental bodies, corporations or associates that will agree to
assume said rights, powers, duties and obligations and carry out and perform the same.

y'all are still scrooged

(which is the purpose of modern HOAs)

#1 is an automatic renewal of the HOA . . . UNLESS it is dissolved by vote of the members. (Ours says every 48 years.) That paragraph just gives your Members the right to dissolve the corporation, by a vote. It has nothing to do with your changing the CCRs.

RE: that so long as the Declarant is the owner of any
of the said lots or open space or any other portion of XYZ
Homeowners Association INC, this Declaration may not be changed, altered,
modified, amended or extinguished without the written approval of the
Declarant.

Does the Declarant currently OWN anything? You said everything was turned over 3 years ago. The HOA should be the owner of common areas and other portions of the HOA.

He could now be a Member, with voting rights if he still owns lots. But the way this is written, if he owns any of the lots, the HOA must have his permission to change the CCRs. NEVER should have been left in the transition paperwork!!!

Are lot owners Members? Check your paperwork and see if just owning an unimproved lot makes you a Member.

You might want to get the opinion of a real estate lawyer as to whether or not this is an unreasonable power given to an ex-declarant, who is now just a regular Member. He has extraordinary power not granted to any other member.

The HOA is, in effect, still under control of the declarant.

Perhaps you could get a judge to see how this ties the hands of the HOA and really, how ridiculously unreasonable this statement is in your CCRs.

Susan,
I realize we need to consult with a lawyer however, we do not have the required funds in our budget to afford one. We are currently running in the negative and are hoping to get approval for an increase in our dues at our next annual meeting in January. Thank you for your comments.

Mary, Yes I am inexperienced and that is why I am seeking help from this forum. Is this not what it was created for? How does one get experience? At the very least I am trying to educate myself and my fellow board members on how to best serve our community. I believe I was quite diplomatic when I stated the old board was inexperienced considering the fact they had total disregard of their fiduciary responsibilities. For over three years since it's inception the "old board" failed to secure liability insurance, fidelity insurance, or D&O insurance. They failed to enforce covenant violations of which their are many. They failed to hold annual meetings because I quote "It's a waste of time, we probably won't achieve a quorum so why bother".They accepted the HOA from the builder without legal council which put us in the situation we are facing now. We are currently having the financial records reviewed to make sure the HOA received all the correct funds from the developer(declarant) at the time of the turnover. The "old board" did not do this. I can go on and on about their "inexperience" but I can tell you, my fellow homeowners used much harsher words to describe their behavior and voted them out of office by a huge margin after forcing them to hold a special meeting for an election.

To get back to the issue at hand, the architectural guide lines do not specify a minimum square footage for a new home. Presently the development consists of five different models ranging from 2400 sq ft to 5200 sq ft. The developer(declarant) was not the builder and no longer has ties to the builder. With the present economic situation we are worried the developer might build smaller cheaper homes on the four lots he owns which would be sub standard to the present community.Hence the need to set a minimum size in the CCR'S.

Thanks