HOA Failed to Record an Amendment

Hi:

4.5 years ago, there was a vote to pass an amendment that would restrict the total number of rentals allowed in the condo building I am a member of.

However, the board never actually recorded the amendment with the County.

Is this amendment legal?

Also, by the look of the amendment they did not have any "Acknowledgement" letters from any owners, or any "Consent and Subordination" letters signed by the lenders (which the other amendments do have). Do they need these letters to properly record the Amendment at this time?

Can they even record the amendment now that it is over 4.5 years after the vote? Most of the people who voted have either sold or foreclosed on their properties in the mean time.

Thank you

Jamie Lewis

No Jamie, they may not file the amendment. Check with the Clerks office or where ever amendments are filed for an expiration date. Here in Tennessee , we have 120 days. I think that 4.5 years will never fly and the vote to amend will need to be redone.

I haven't found a time limit in the Davis-Stirling act for recording an amendment with the county. However, according to the Davis-Stirling Act, the following conditions apply (Civil Code §1355. Amending the CC&Rs):

(b) Except to the extent that a declaration provides by its express terms that it is not amendable, in whole or in part, a declaration which fails to include provisions permitting its amendment at all times during its existence may be amended at any time. For purposes of this subdivision, an amendment is only effective after

(1) the proposed amendment has been distributed to all of the owners of separate interests in the common interest development by first-class mail postage prepaid or personal delivery not less than 15 days and not more than 60 days prior to any approval being solicited;

(2) the approval of owners representing more than 50 percent, or any higher percentage required by the declaration for the approval of an amendment to the declaration, of the separate interests in the common interest development has been given, and that fact has been certified in a writing, executed and acknowledged by an officer of the association; and

(3) the amendment has been recorded in each county in which a portion of the common interest development is located. A copy of any amendment adopted pursuant to this subdivision shall be distributed by first-class mail postage prepaid or personal delivery to all of the owners of separate interest immediately upon its recordation.

Read more: Davis-Stirling Act.

Rob

Hi DonnaS:

Thank you for your reply, I really appreciate it.

That is a great point. They have not been enforcing it, as there have been 5 units being rented for over 1.5 years now, and the limit is set to 4.

Kind Regards

Jamie