Amendment declaration of protective covenants

Why would you APPLY for something and not ask or become aware of the guidelines before you applied?

Is your complaint that you did not get the ARC rules with your "welcome packet"?

I did ask for all the rules and the sales person went over them with me. The problem is that there was an addendum filed by the developer 4 years after the bylaws were created. The addendum was filed through the county - but the addendum is not in the bylaw book. In fact, none of the sales people even knew about the addendum. I had to go down to the county building to pull it. I gave it to the sales people and the developer who created and filed the addendum is scratching his head because it is not in the bylaw book. Every home buyer on the street - is not aware of this addendum.

A HOA is a SALES tool used by the developers/builders to get buyers in the door. They then turn over that HOA to the OWNERS to manage and run themselves. That means the OWNER's can make up the rules they want to live under. (Even the developer can IF they still control the HOA).

By-laws typically don't require to be filed. You most likely got a copy of the Convenants and Restrictions which are filed. By-laws are the rules of the HOA and CC&R's are the rule of the land. The ACC is how that land is supposed to look.

Your swimming up creek without a paddle on this one sorry to say. The HOA can turn your submittal down for whatever reasons they have. Go back to the drawing board instead of trying to change the drawing board to fit your needs...

It is the RESPONSIBILITY OF THE OWNER/POTENTIAL BUYER to be aware of the HOA and it's rules. The documentation is a PUBLIC record at the records department at the local county courthouse. People want to blame their Realtor, HOA, Developer, Mortgage company, lawyer, or previous owner about not knowing about the HOA. The existing laws makes it clear that it is the owner's responsibility to be informed and take the steps to be so.

You just discovered the first issue involving HOA's. Their very existance...The mortgage company should have factored in the HOA dues prior to approval of the loan. The dues are akin to paying utilities. That should have been the first clue to people they are buying into a HOA. The ad for the home can include HOA references. You would think the Realtor would inform the buyer of that. However, they can tell their client but can't provide them the rules as they are NOT a member qualified to have a copy. The Realtor can simply tell the potential buyer to go to the courthouse to get the documents, tell them a HOA exists, or they need to talk to a member to get the information. The same applies to the lawyers, developers, or other people involved in the sale of the property. If your lucky, the day of closing the seller/former owner will turn over their copy of the documents. However, how up to date those are is anyone's guess.

Your best bet in a HOA is to be INVOLVED. You want information go get it or have it. Don't wait until you want something to find out what you bought into. A HOA can work well IF the owners/members realize there is NO "They/Them" in a HOA but YOU and YOUR NEIGHBORS"...

Don't make me go into my rant about HOA's...LOL!!!

Thanks Janet!
We actually will having an annual meeting in May. We have a total of 3 board members. 2 of them are up for re-election this May. The 1 remaining board member is great to work with. (he happens to be my next door neighbor). We have a small hoa - consisting of 40 lots/homes. 30 of the lots now have houses on them. (20 young families and 10 older families). The other 10 lots are still for sale.
In the hoa by-laws, it states that once 50% of the lots have been sold, the developer/president will relinquish his duties, however he will still have voting power on rules in the hoa until the last lot is sold. We have a few home owners that are interested in being elected (the younger families). I would have loved to run, however, my husband is on the nominating committe which cancels my ability to run and be elected.
Most of the families in the hoa are very much committed to having a great place to live and raise their families - but unfortunately, the older families never wanted a young families with kids in the development. (the history is.....when the older families built their homes, it was suppost to be a patio/retirement community. But the lots did not sell and the developer sold rights to a different builder which more or less deals with affordable housing for younger families. Now you can imagine why some of the home older home owners are so mad).
They dont like the kids playing in the front yards, or riding their bikes on the street. It has been a real bone of contention.
Anyways, you are right, as we become more established, and have the ability to run the hoa ourselves, hopefully we can bring some requests for change.
Thanks for your input!!

Hi Janet. I'd like to point out a clarification to your statement above. Mortgage companies are the true owners of the majority of your houses. The way I understand it, to get any amendment to the bylaws our covenants would require the approval from every mortgage company that holds a note for a home in that community. That would be near impossible. Mortgage companies love HOA's because it protects their investment. They are not usually willing to consider any type of change or amendment.

At best, the HOA and BOD's could simply choose to allow variances to the bylaws unofficially....problem is that as boards change, so do the "rules" on unofficial variances and that can cause major issues.

My .02

Hi Again,
I wanted to update everyone with what has been found. I am not sure if this makes a difference of not, but wanted to give this information. So to restate my situation, I received the HOA Rules and Regulations (dated 2006) before I purchased to build. I was fine with what was in the rule book. However, when I went to put up a fence, I was denied because the fence had to be 4' high, white vinyl with 4" spacing inbetween the pickets. I thought I missed something, but there was nothing in the rule book regarding this. I asked my neighbor who is on the board to see where the fence regualtions could be found. He stated that he couldnt find it and was unaware of the fence regulations himself. I asked the PResident of the Board (the developer) if he could send me the rules on fence and he e-mailed me the declaration of protective covenants/restrictions (dated 2009). Contained within this is the statement that the fence must be 4' in height. Nothng else. Interestingly enough, I never received this. From this blog, I was told it is MY responsibility to search this recorded information on the land I purchased. There is no documentation of this being filed through the clerks office. I was also advised that this information would be found in my Title/Search of the property. And again there is nothing documented about any restrictions on my land. I went through all my closing paperwork and found nothing about the addendum. When I closed, the attorney for the seller was there and stated that she forgot the keys to my mail box, and would send it out to me when she got back to the office. I wasnt too conserned because I didnt change my address yet. After closing, when I received the letter at my old address, enclosed within were my keys to the mailbox and also a letter stating where to send my HOA dues. On the second page of the letter was a summary of very specific rules that I have nevcer seen before. No basketball nets, hockey nets, playset or swingsets. No above ground pools. Fences must be 4' high. white picket vinyl with 4" spacing. No wood fences. No gazebo's. No parking on the street, working on cars in the drive etc. I was surprised that this was so specific given the rule book itself was vague. Shouldnt this been something I should have got at closing at the least? And why arent the restriction/covenants able to be found on my land? It isnt just my Title Co that did not find it, there are 10 neighbors that bought after me that did not have this in their title either. I re4ally feel something is not right here. Any advice would be greatly appreciated.

Hi Kim:

What is the title on the document which you did not receive initially? Potentially if it states “Amended Declaration …” then it may not potentially be a legal binding document because it was not properly filed. If it states “Rules and Regulations for ….” then potentially these are rules adopted by the board of directors and would not necessarily be required to be filed.

We cannot see all the documents you are questioning and all states vary with regards to required disclosures. If you are greatly concerned about the non-disclosure of the second document you may want to consult a local attorney.

Carolyn,
Yes, I can not find any restrictions recorded for the property. The association has been incorporated and the article was filed. I do have that. The HOA is not voluntary. I am thinking that possibly, the ammendment/restriction was not filed properly. I am currently consulting an attorney about this.
Tim,
I guess my answer to your question is yes. Had I known that there were restrictions on the property that went above and beyond the bylaws, I propbably would have not built here. As I said before, I did not have a problem with a HOA initial conditions. And I also know that this could be considered growing pains. I want my house to be beautiful. I want to put landscaping in, a patio and a fence. However, As I progress in this venture, more and more things are being uncovered. I can only imagine what else is out there. I guess I will find out when I try to get something approved.
When I spoke to the developer, I asked him why wouldnt he included the amended 2009 restrictions on the properties in the 2006 bylawss that he is currently handing out? His nresponse was "well the book was already binded and we didnt want to have to take them apart to add the amended restriction". That to me was the icing on the cake.

Hi Kim:

For Amended Declaration generally if not properly filed within X amount of time, then if members want the rules it would need to be redone, proper vote by members, and properly filed. They potentially cannot just all of a sudden file a document from 2009 now in 2011. In some states the documents after properly approved must be filed within 30 days to be valid.

Yes, you are correct with what I am saying. There are no deed restrictions attached to my property in the title. The only thing that is in the title is the incorporation of the HOA. So I am working with an attorney to ascertain whether the title company missed this or the possiblity the restrictions where not filed properly by the developer or the county itself.
What a mess!

I have asked the President if this was a voluntary HOA and he stated no. When I purchased/built and closed, I became a member immediately. He is not a very pleasant man. The good thing is that there is a meeting at the end of May and he has to be elected in to stay on the board. Consensus is with the other homeowners, this will be his last term. I will keep you all posted. Thanks for all the useful information!!
Kim