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MaryB19 (Florida)
Posts: 25
Posted:
Hello , I would like to ask the question about Declarants, I understand if they have sold 90 per cent of their property they are no longer a declarant, can you help with this???
SteveM9 (Massachusetts)
Posts: 3,699
Posted:
It's true if that's what your documents say. Everyone's documents are different.
JanetB2 (Colorado)
Posts: 4,219
Posted:
If you are in a Condominium here is the statute:

33-1243. Board of directors and officers; conflict; powers; limitations; removal; annual audit; applicability

E. The declaration may provide for a period of declarant control of the association, during which period a declarant or persons designated by the declarant may appoint and remove the officers and members of the board of directors. Regardless of the period provided in the declaration, a period of declarant control terminates no later than the earlier of:

1. Ninety days after conveyance of seventy-five per cent of the units which may be created to unit owners other than a declarant.

2. Four years after all declarants have ceased to offer units for sale in the ordinary course of business.
MaryB19 (Florida)
Posts: 25
Posted:
The only thing stated is this listed in orginal document

""The corporation shall have two classes of voting, each parcel owner shall be entitled to one vote for each parcel owned, except Declarant, who shall be entitled to 10 votes for each parcel owned. ""

No other mention is made. except in CCR.s which state as long as developer holds six parcels you cannot change or ammend CCr's without approval of developer.

That is another question.

It is stated in several laws that as each phase of a developement is finished, that the deveolper no longer holds these rights.
Thanks

MaryB19 (Florida)
Posts: 25
Posted:
It does not state it in the documnts, I was wondering if there is a law regarding this???
JanetB2 (Colorado)
Posts: 4,219
Posted:
Mary ... Are you condominiums or single family homes.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Mary,

There is a difference, granted minor, in the declarant being in control vs. the declarant having the majority votes.

In one, being in control, the Declarant has complete control of what happens on the property. The Declarant appoints the Board of Directors, etc. The homeowners have no say.

In the other, have the majority votes, the homeowners are in control of the Association and Directors are elected by the membership. In your case the membership has two classes of voting rights, the owner and the Declarant. So if there are 100 lots, 75 of them are sold and 25 are owned by the Declarant, the Association, if a condo, must be turned over to the membership. However, since the Declarant has 10 votes per lot, the declarant would control the vote until 91 homes have been sold (as it would be 91 homeowner votes to the declarants 90 votes).

Like I said, it's not much of a difference. More of a legal technicality.

Hope this helps.

Tim
MaryB19 (Florida)
Posts: 25
Posted:
We are a HOA of 40 acre parcels, 2800 members, Beside the CCR's our only goal is to maintain roads. We have a management co, that answers to no one but the developer, they break the By-Lws , they ignore the rules and because the developer was not put on the ticket for the board, he fired the nominating committee and named the board the nominating committe and now he is on the ticket.
Now he does not pay dues as stated, he must be a member in good standing, which means own property and pay dues, he owns no land for his self, as the declarant he owns 142 parcels. so he is no longer the declarant with his additional votes, but he will claim them, he is no longer the developer because all phases has finished and he is not a member in good standing, because he owns no property in his name and pays no dues.
How In the world do we get rid of him. One problem being our community is just started growing, there may be 350 of us who reside and have homes here, the rest are just land owners, so they send their proxies in like lambs and we have no control over that, we have contacted a attorney, it involves allot of money, so we are taking contributions, I don't feel this will ever happen.
There are a multitude of problems with the management co.

Whewwh, thanks any help , direction would be appreciated.
MaryB19 (Florida)
Posts: 25
Posted:
Thanks Tim, In 2008 he declared he was no longer a declarant because all properties had been sold, in 2009 he came back and said he was because 200 lots had been defaulted on, but that is less than the 10 percent he needed, we are 2800 strong, which means he would have to have over 280 properties to maintain declarant staus if the law states 90 percent sold.
Now it is also my understanding that once he sold those properties he could not hold that declarant rule because it would be the same if a bank had repossed them, once owned and dues paid they would have to continue to be paid, he pays nothing.

thanks
TimB4 (Tennessee)
Posts: 21,059
Posted:
This sounds like it might end up going to court. I would suggest that the Association seek legal advise from their lawyer.

Tim
MaryB19 (Florida)
Posts: 25
Posted:
Thanks Janet, but we own 40 acre parcels of land. All these parcels have been sold at one time now he has 200 out of default, which would be the same as if a bank repossed them, once dues are paid then they must continue, but he pays nothing. I am in Az, allot has been done to improve our laws, but they are still pretty vague on this issue. I guess I am looking for any help, maybe a federal law???
Thanks
MaryB19 (Florida)
Posts: 25
Posted:
Thanks Tim,,, We did seek advice, he said we had allot of things in our favor, the down side, the amount of money he ask for, we are currently trying to raise that. out of 2800 owners only about 350 of us live here permently. Most of us are retired there are about 20 of us that have attended all meetings and fought tooth and nail, I guess I am looking for a miracle, but its good to know we do have rights.
The By-laws state that the Assoc can be dissovled in 20 years, it was created in 1997, so we have almost 8 years to go, now that will be something to get 66 and 2/3 rds of the people to vote it out.
Also we can not get the list of homeowners we currently have 480 names and address's, it seems to be a uphill battle.
Thanks Mary
JanetB2 (Colorado)
Posts: 4,219
Posted:
Hi Mary:

Per your statement:
“It is stated in several laws that as each phase of a development is finished, that the developer no longer holds these rights.”

Can you post the statute numbers?

I will review the statutes to see what I can find regarding this issue, and any others you may post. In the meantime here is the difference between Declarant Control vs. Declarant Rights:

Declarant Control relates to the Declarant’s right to control the operation of an association by means of appointing members to the Board of Directors. The Declarant Control provision permits the Declarant to establish budgets, execute contracts, retain vendors, etc. This authority allows the Declarant to maintain costs related to the operation of the community.

Reserved Declarant Rights are rights that the Declarant may retain to ensure the community is completed. Reserved Declarant Rights typically include the right to annex additional property into the community, the right to expand the community, the right to amend the Declaration pursuant to reserved Declarant Rights, and the right to maintain sales offices, signs and perform marketing for the community.

Reserved rights do not expire upon the expiration of the Declarant Control period but, rather, may continue for a number of years after the Declarant surrenders control of the property.

I believe that according to your statements after 90 percent was sold the period of “Declarant Control” has ended. The problem is you have some declarants, especially if they still own property, tend to not peacefully relinquish proper control because they lose control of the association. In most cases this means where previously they did not have to pay association dues they now are just like everyone else and must pay up, so they fight to not lose control.

To get the names and addresses of the other homeowners you can go to your County Assessor’s site and look up the property addresses. These sites will usually list the Owner and the mailing address for sending their property tax bills. It will take a little leg work for so many parcels, but the information should be available.
MaryB19 (Florida)
Posts: 25
Posted:
Hi Janet Thanks
It has been a long day but this is the staute we are governed by
ARS 33-18021 through ARS 33-1814 we are not a time share

Now where I read about the developer, I will have to go back and check

This is stated in our documents. so this is the rule
Reserved Declarant Rights are rights that the Declarant may retain to ensure the community is completed. Reserved Declarant Rights typically include the right to annex additional property into the community, the right to expand the community, the right to amend the Declaration pursuant to reserved Declarant Rights, and the right to maintain sales offices, signs and perform marketing for the community.

Yes the developer still owns property through a real estate company, not as a indivual.
Mary
MaryB19 (Florida)
Posts: 25
Posted:
Janet I do believe I read it in the .
Davis-Stirling Act

Thanks Mary
JanetB2 (Colorado)
Posts: 4,219
Posted:
Hi Mary:

The Davis-Stirling is for California so it will not help here.

I need a little more information and clarification on a couple of items:

1. You initially stated declarant has 142 properties, but then later stated 200 reposessed. So I want to make sure exactly ... how many parcels total, how many owned by homeowners, and how many owned by declarant.

2. Who is on the current board ... how many homeowners and/or how many declarant appointed.

3. Does the management company post a copy of your CCR's on a website? Otherwise I will need a few sections posted regarding declarant control which need to be exactly as written.

MaryB19 (Florida)
Posts: 25
Posted:
.
Article IV
Membership Voting
1. The Association shall have two classes of voting Membership, and at any meeting of the Membership called and held pursuant to the provisions of the Bylaws, each Member shall be entitled to one (1) vote for each Parcel owned by such Member (whether a Result of Survey Parcel or a subsequently Divided Parcel), except Declarant who shall be entitled to 10 votes for each Parcel owned.

when I stated 200 that was last year , this year he holds 142, we have 2800 properties.

I am still looking for the developer item I read, Thanks Mary

MaryB19 (Florida)
Posts: 25
Posted:
We currently have 5 board members, one of which is the declarant,
Mary
MaryB19 (Florida)
Posts: 25
Posted:
Termination of Declarant Control

6. Terminates declarant control of a HOA the earlier of two years after the last unit has been offered for sale or:

a) for a condominium or planned community with fewer than 400 units, 90 days after the sale of 75 percent of the units.

b) for a condominium or planned community with between 400 and 1,000 units, 90 days after the sale of 80 percent of the units.

c) for a condominium or planned community with between 1,000 and 2,000 units, one year after the sale of 90 percent of the units, other than those owned by the developer.

d) for a condominium or planned community with more than 2,000 units, one year after the sale of 95 percent of the units, other than those owned by the developer. (33-1243, D and 33-1809, A)

7. Removes existing standard of terminating declarant control the earlier of 90 days after 75 percent of units have been sold or four years after last offer of sale. (33-1243, D and 33-1809) This is the AZ Law

MaryB19 (Florida)
Posts: 25
Posted:
d) for a condominium or planned community with more than 2,000 units, one year after the sale of 95 percent of the units, other than those owned by the developer. (33-1243, D and 33-1809, A)

ok so this is the revised law, sorry I should have read farther

Mary
JanetB2 (Colorado)
Posts: 4,219
Posted:
Did the #6 & #7 you noted above come from your CCR documents?

The reason I ask is because the references in parenthesis to 33-1809 do not reference anything regarding declarant control, it references:

33-1809. Parking; public service and public safety emergency vehicles; definition
MaryB19 (Florida)
Posts: 25
Posted:
Once you declare you are no longer the declarant, because you have received these properties back as in foreclousure and you reinstate your dclarant powers???
M
MaryB19 (Florida)
Posts: 25
Posted:
No this is AZ Law

mary
MaryB19 (Florida)
Posts: 25
Posted:
S.B. 1368
Az senate bill
JanetB2 (Colorado)
Posts: 4,219
Posted:
Do you have the link you used regarding AZ SB 1368?

When I search what comes up is: http://www.azleg.gov/legtext/49leg/1r/bills/sb1368p.htm

Which relates to employment discrimination.
MaryB19 (Florida)
Posts: 25
Posted:
http://www.azleg.state.az.us/legtext/45leg/1r/summary/s.1368com_aspassedbysenate.doc.htm
JanetB2 (Colorado)
Posts: 4,219
Posted:
It is not AZ Law ... SB 1368 failed to pass the Commerce and Economic Development Committee through the House of Representatives:

http://www.azleg.state.az.us/legtext/45leg/1r/summary/h.sb1368_4-02-01_caucuscow.doc.htm

Here is the bill status overview:

http://www.azleg.state.az.us/legtext/45leg/1r/bills/sb1368o.htm

Let me look at some more info ... get back to you later.
MaryB19 (Florida)
Posts: 25
Posted:
ok thanks
Mary
JanetB2 (Colorado)
Posts: 4,219
Posted:
I want to make sure what exactly is your concern? Because the homeowner's control the Board at this time.

If there are 5 Board members and the declarant is only one of them, then the homeowner's control the Board and can override the declarant's Board vote. Therefore, the homeowner's on the Board can fire the management company, if desired.

As long as the Declarant owns any properties he can run and be elected to the Board, even if the parcels are owned by his real estate company because he is the owner/officer of that company. Therefore, he would be the owner/representative of the parcels.
MaryB19 (Florida)
Posts: 25
Posted:
ok

1 -- In 2008 he withdrew as the declarant because he had sold all his properties,
In 2009 he took back that power because he had received 200 of his properties back in foreclosure and reinstated hisself as declarent.
It was our understanding that once they were sold it was the same as a bank lender if they repossed , he would be resposible for dues on those properties because they had been established and dues paid when bought.
He pays no dues on these properties.

2 Our understanding was he could not put hisself back as declarant once sold

3-- As for the board, he has 10 votes x 5 which is 50 per parcel, we receive 5 votes per our property.
With 141 parcels he has 7050 votes,, Every year he has his favorites run and sits the board with his declarant votes, he violates the secret ballot because he waits until all the votes are counted but his, then adds his to the ones he wants to sit the board.

4 ---We have a management company that answers to no one but him,
This year we got enough people on the nominating committe to keep him off the ballot, the management co. called the attorney , who said we had to fill the slate, we picked four out of six.
Then the management co. called and stated if we didn't add all then we were fired and the board would be the nominating committe and they would put all on the ticket. we were asked to do a phone meeting, at this we agreed and added one more canidate to fill the slate as per required by the attorney.
The board still fired us, the declarant demanded he be added and they did.

5 ---- 2 canidates have withdrawn from the race, and we are trying to get 2 more to withdraw as this would only leave 2 the election would have to be done over with in 60 days.

6-- we are trying to get him eliminated as declarent so we can at lest get someone else in office.

7 I am looking for some kind of law , precedent or something to use.

Thanks Mary
MaryB19 (Florida)
Posts: 25
Posted:
I might also add he gets proxies of those who do not live here, they don't have a clue whats going on.
if we can get a new board in, we can eliminate the proxies and have the assocation get his stuff in writing of what he owns exactly, because the management co says it is private.
Our main concern here is the roads, we have 500 miles of dirt roads that are horrible, the money is going out , but the work is not done. we spend a small fortune to have these roads graded and repairs, some roads are so bad without 4 wheel drive they can't get up their roads, and they are going down hill worst each year and it keeps costing more.

We had a road committe that was doing wonderful, the Declarant stopped it all.

Thanks mary
JanetB2 (Colorado)
Posts: 4,219
Posted:
OK ... there is conflict again regarding votes. You just stated:

3-- As for the board, he has 10 votes x 5 which is 50 per parcel, we receive 5 votes per our property.
With 141 parcels he has 7050 votes,, Every year he has his favorites run and sits the board with his declarant votes, he violates the secret ballot because he waits until all the votes are counted but his, then adds his to the ones he wants to sit the board.

However, previously you stated:

Article IV
Membership Voting
1. The Association shall have two classes of voting Membership, and at any meeting of the Membership called and held pursuant to the provisions of the Bylaws, each Member shall be entitled to one (1) vote for each Parcel owned by such Member (whether a Result of Survey Parcel or a subsequently Divided Parcel), except Declarant who shall be entitled to 10 votes for each Parcel owned.

So ... where does the (x 5) come into the picture.
MaryB19 (Florida)
Posts: 25
Posted:
We get 5 votes for one parcel, as there are five positions on the board., that means one vote percel
he gets 10 x the 5 per parcel

MaryB19 (Florida)
Posts: 25
Posted:
Article IV
Membership Voting
1. The Association shall have to classes of voting Membership, and at any meeting of the Membership called and held pursuant to the provisions of the Bylaws, each Member shall be entitled to one (1) vote for each Parcel owned by such Member (whether a Result of Survey Parcel or a subsequently Divided Parcel), except Declarant who shall be entitled to 10 votes for each Parcel owned.
JanetB2 (Colorado)
Posts: 4,219
Posted:
I believe there might be some confusion going on at this time. Article IV which I assume is from your HOA documents states one (1) vote per parcel (except Declarant who gets 10 votes per parcel). However, for board members there is only one (1) vote per board member during board meetings. The only time the Declarant gets to use his 10 votes per parcel would be during anything the entire membership votes on and which would utilize the “per parcel” voting. Is there something else in your HOA documents where the (x 5) is stated?
MaryB19 (Florida)
Posts: 25
Posted:
No there is not., There are five board member slots voted on every year, this has always been this way, we vote for 5 people to fill those slots every year. Why would this be a problem?

The main question is:::::::::::

1 -- In 2008 he withdrew as the declarant because he had sold all his properties,
In 2009 he took back that power because he had received 200 of his properties back in foreclosure and reinstated hisself as declarant. ( for the purpose of superior voting rights))
It was our understanding that once they were sold it was the same as a bank lender if they were repossed , he would be resposible for dues on those properties because they had been established and dues paid when bought, and because of this he could not claim them for superior voting rights.
He pays no dues on these properties.

2 Our understanding was he could not put hisself back as declarant once all properties were sold.

So can he reinstate hisself as Declarant once he is no longer Declarant just because he got those propeties back in foreclosure? ( for superior voting rights)

Thanks Mary
JanetB2 (Colorado)
Posts: 4,219
Posted:
Check your By-Laws to verify the voting method. Usually the Plurality Voting System is used and which is:

The plurality voting system is a single-winner voting system often used to elect executive officers or to elect members of a legislative assembly which is based on single-member constituencies. This voting method is also used in multi-member constituencies in what is referred to as an exhaustive counting system where one member is elected at a time and the process repeated until the number of vacancies is filled.

Each position is voted and filled one at a time and process repeated until all vacancies are filled. Therefore, for each position the Declarant would have 1,420 votes and homeowners 2,658. If you can get the majority of votes then you can keep him from being elected to the board.

I am not an attorney so as far as him withdrawing and reinstating himself as a declarant I have not yet found any statute regarding this issue at this time. Just from a layman’s point of view I would agree with what you stated that it would be similar to foreclosure and he just now is a regular owner same as everyone else; however, this is a question an attorney would need to answer.

If the majority of homeowners fill the board positions then they could opt to hire an attorney on behalf of the HOA to ask these questions and which would be paid for by the HOA. I would make sure it is a different attorney than the one who may have been consulted on behalf or used by the declarant. Seems I saw on a news article just a short while back that there is an attorney in Arizona who is trying to get better protection through legislature for HOA’s and homeowners. This is the type of attorney you need to consult one who is more of a constitutionalist and in favor of homeowner rights. Avoid any who primarily deal with developers.
MaryB19 (Florida)
Posts: 25
Posted:
Thanks Janet
That is what we are trying to do., we have only 300 that live here, the rest are proxie votes and they all go to the Declarant, so our only option is to get him out, to get some things done.
Mary
JanetB2 (Colorado)
Posts: 4,219
Posted:
Go to the County Assessors and obtain all the mailing addresses for the other parcel properties. Send them all a letter detailing the issues and request they give their proxy vote to you or mail back their ballots voting for other individuals and not the declarant.

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