Posted:
Hi Terry:
I would have a number of the homeowners send a âCertified Return Receiptâ letter to the declarant with the information regarding this statute especially the bold text noted:
38-33.3-303. Executive board members and officers - powers and duties - reserve funds - reserve study - audit.
(5) (a) Subject to subsection (6) of this section:
(I) The declaration, except a declaration for a large planned community, may provide for a period of declarant control of the association, during which period a declarant, or persons designated by such declarant, may appoint and remove the officers and members of the executive board. Regardless of the period of declarant control provided in the declaration, a period of declarant control terminates no later than the earlier of sixty days after conveyance of seventy-five percent of the units that may be created to unit owners other than a declarant, two years after the last conveyance of a unit by the declarant in the ordinary course of business, or two years after any right to add new units was last exercised.
(7) Except as otherwise provided in section 38-33.3-220 (5), not later than the termination of any period of declarant control, the unit owners shall elect an executive board of at least three members, at least a majority of whom must be unit owners other than the declarant or designated representatives of unit owners other than the declarant. The executive board shall elect the officers. The executive board members and officers shall take office upon election.
38-33.3-103. Definitions.
(30) "Unit" means a physical portion of the common interest community which is designated for separate ownership or occupancy and the boundaries of which are described in or determined from the declaration. If a unit in a cooperative is owned by a unit owner or is sold, conveyed, voluntarily or involuntarily encumbered, or otherwise transferred by a unit owner, the interest in that unit which is owned, sold, conveyed, encumbered, or otherwise transferred is the right to possession of that unit under a proprietary lease, coupled with the allocated interests of that unit, and the association's interest in that unit is not thereby affected.
In the above reference to 38-33.3-220 (5) it is for a large planned community, which would not potentially apply as you are only 32 homes. Also, in the definition for âUnitâ this is referencing lots as in a single family home subdivision the only item which describes boundaries is the final plat describing the boundaries of the lots.
In the letter request when a meeting will take place regarding the transition from developer to homeowner. Be advised that in subsection (7) it states that a majority of whom must be unit owners. Therefore, in essence if your board is 3 members then 2 are suppose to be homeowners and 1 will potentially remain declarant. Which this is only fair as the declarant does still own a large number of lots and should have some representation on the board. This also will help keep declarant potentially involved during the transition and potentially help make for a smooth transition from developer to homeowner. This might be something to reference in the letters to the developer to help smooth any potential ruffled feathers.
Because the declarant has taken no action I would also suggest potentially that the current homeowners ban together and pitch in to hire an attorney for this transition. This will insure that everyone is protected and insure everything the developer is suppose to have taken care of is proper. You want to insure any and all items that will eventually be the homeownerâs responsibility has been constructed well and no potential issues prior to takeover.
At this time I would put together a binder with all your HOA documents with dividers for Article if Incorporation, By-Laws, CCRâs, etc. I would also suggest you print the state statutes from the site I posted above and add to the binder, then sit down with highlighters and note i.e. orange what is the declarant responsibilities and yellow for what is homeowner responsibilities. This will make it easy to reference information during this period regarding responsible party.