Anybody in Indiana willing to help clarify what law applies?

Thanks for reading. I own what has been marketed since its inception in 1985 as a condo, what I am now told is a townhouse. As the 88 units on the Northwest side of Indianapolis are now getting older, problems are occuring. These problems are structural as well as aethsetic and social. All the roofs and siding need to be replaced. The grounds are in sad shape. Recently, there has been vandalism and destruction in the community which has been proven to be owner on owner induced. Yet our "board" refuses to take appropriate action, and the management company only wants to spend pennies putting bandaids on problems rather than fixing them appropriately for the long haul.

Our developer filed a declaration for this planned community before Indiana had per se condo or homeowners association statutes. Apparently, this inital declaration called the units townhomes.It was notfiled under the old horizontal property act, which became the new condo statute, but it provided for a board of directors that mostly mirrors the current HOA law, but without its bite to fine or assess for infringements on the use and enjoyment of other owners. Since these units were first sold, they have been called, marketed as, and assumed to be condos. We bought condos, not townhomes, and if you look at the real estate listings today, they are still advertised and sold as condos. The problems come in because while the board is called an HOA and they have power to repair, replace, assess, contract, maintain the common areas (pool, lake, etc.), the board attorney (Stephen Buschmann) says that it is not an HOA under the statute and these are not condominiums under the condo statute. The statutes for HOAs and condominiums were enacted later, and while they require the same process to record a declaration, etc., the declaration could not have been filed in 1983 under statutes that were only enacted in 2008 or thereafter. Those statutes offer more powers and protection to owners, but the attorney says that even though all these things are true, our development is not governed by either the HOA or the condo statutes. In effect, we fall outside statutory authority entirely. We are only bound/protected by the initial declarations, bylaws, covenants, etc., which may have been adequate in 1983, but are woefully inadequate to deal with current conditions. There is a provision by which we could vote to be governed by these statutes, but try getting a quorum to vote for anything amidst all this complancency and anger that the board is doing nothing to protect us. They have become adversaries that make excuses for doing nothing rather than advocates for our wellbeing.

This just doesn't sound right to me. I've looked at the legislative history and at caselaw without finding an answer. Surely developments created by declarations that were recorded prior to the statutes' inception were grandfathered into the provisions of the current statutes.Surely such developments and their owners cannot be left out in the cold, denied the statutory powers and protections, and their right to the quiet use and enjoyment of their property discriminated against simply because they are old, not called by the right name initally, and were not filed under the current statutes. That simply doesn't make sense. None of the statutory provisions of the HOA or condo laws apply to us? We are outside statutory protection entirely? I see lots and lots of problems with this, mostly stemming from the fact that the board has an attorney telling them that they do not have the authority which other boards in other communities do have, simply because these statutes did not exist when the development was created. This sounds like an attorney who isn't in touch with evolving law. If nothing else, by analogy, aren't these owners entitled to the same powers and protections as other similar communities that were developed under current law? Why would the bundle of property rights be different for some property owners just because someone called them townhomes in 1983? That's an archaic mentality!

Would someone please help me to understand this, show me how to oppose it, or how to empower a complacent board that refuses to maintain/take action to preserve a dying community peopled with mostly older, single people who don' understand how much they are being shafted by an attorney and a board who refuse to change with the times and address real problems?

Thanks so much for any help that you can offer.

Lori

Thanks for writing. Under the declaration and bylaws, I own the interior portion of my unit in fee simple. I also own an undivided co-ownership share of the common areas of the complex. In reality, I am taxed on the square footage of my unit at what is supposed to be fair market value. The common areas are not taxed to me or the other owners, which I think is strange because the decs say we are undivided "co-owners" of the common areas. Instead, as a not for profit corp., the board is exempt from paying property tax on the common areas. So that's a mish mash right there. In short, no one knows what the complex is for certain, except the attorney who says that we own our townhomes (that we think are condos) in fee simple, and the not for profit board governs the common areas, which I co-own, but don't pay tax on. The condominium statutes don't apply because the declaration were not filed under the (then existing) Horizontal Property statute, which morphed into the condo statute in 2009. The HOA statute does not apply because our board was formed in the 1980s, and this statute does not apply to boards formed prior to July 1999 unless the board has voted to subject themselves to this statute now. They have not, basically because they don't understand the ramifications. Thus, we are left with a board operating on declarations, bylaws, and covenants from 1983, not on any statutory authority.

As a result, we've got owners that haven't paid assessed monthly dues for a decade while the rest of us send our check every month. The attorney for the board says that if a lien isn't filed yearly, the board loses any ability to recover that amount, but worse, it has no authority to sue for it under the original declaration. This is not common knowledge, I assure you, or everyone would stop sending their monthly checks! Why pay when there is no consequence? That's just one example. The complex is deteriorating out from under us, and frankly, the vast majority of homeowners don't care or don't understand. This city has been hit terribly by the real estate market crash, perhaps not as badly as some parts of Florida, and if I thought I could sell,I certainly would. But I know that I can't. I'm only trying to preserve what property value and safety we have left, hoping (probably against hope) that the economy will turn around so I can get out of here.

In short, I don't think this situation follows any reasonable logic. If so, I can't discern it. We're a not condo, and we're totally unprotected by anything except ancient bylaws and covenants that are supposed to be enforced by a benign board that can't do much more than authorizethe painting of siding and mowing of grass. Apparently I misunderstood the relationship of the board to the management company or to its attorney. One would think that even if board members are confused and uninformed, the managment company and/or attorney would advise them on how to amend the decs and bylaws, vote to be subject to condo/HOA statutes, and take action to protect the property. No dice. I'll probably get stonewalled if I do raise suggestions, but I'd like to try.
Lori

Lori,
just a few comments.

‘Under the declaration and bylaws, I own the interior portion of my unit in fee simple.’ [Lori}

Fee-simple ownership means that you own the townhouse including the exterior of the unit and the land under it. If the unit is a condominium unit you own only the air space of the unit. I am not familiar with ‘interior portion fee simple’ ownership.

'I also own an undivided co-ownership share of the common areas of the complex. The common areas are not taxed to me or the other owners, which I think is strange because the decs say we are undivided "co-owners" of the common areas. Instead, as a not for profit corp., the board is exempt from paying property tax on the common areas. So that's a mish mash right there.' [Lori]

Undivided interest in HOA or condominium means that the land is owned by the association and every unit owner has the right to use it. You most likely do not own any % of it.

'In short, no one knows what the complex is for certain, except the attorney who says that we own our townhomes (that we think are condos) in fee simple, and the not for profit board governs the common areas, which I co-own, but don't pay tax on.'[Lori]

Your attorney may be correct. He probably checked the deeds and the community plat and read the covenants. Again, you most likely do not co-own any common areas. If in doubt, take your deed and the Plat and ask another real estate attorney.

‘ The attorney for the board says that if a lien isn't filed yearly, the board loses any ability to recover that amount, but worse, it has no authority to sue for it under the original declaration.'

True. And, since one does not know what your covenants state it is difficult to determine who is responsible for exterior maintenance of your units.
Once you determine legal ownership then you can proceed with upgrading your docs.

NOTE: I know of HOAs in Florida who have not updated their docs since early 1980s. And yes, at that time hardly anyone knew what HOA really is. But it really does not matter because they know they are HOAs (because they own their units fee-simple) and when state laws prevail. As I said, once you understand your legal ownership in the community, you can amend your docs and follow the statutes applicable to you.

Lori,
The bottom line is at the very minimum, you have a contract between you and the association. You have paid them, they have accepted payment for services they agreed to provide for in the contract, which is your governing documents. And within those documents, they, as well as you, have contractual obligations. The association, which you are an appendage to, is responsible for the contents of that contract. Determining which law does or does not apply, is irrelevant at this point. If the documents state the association is responsible for painting the exterior of your home, or mowing your grass, or maintaining your sidewalk, then that is what the association is responsible for.

What are you trying to get accomplished and what does your governing documents state?
Surprisingly someone has not tried to eat you on this forum for not being more actively involved in your association functions.

I suggest the following;
1) Determine your goal
2) Read the governing Documents
3) Contact your BoDs and discuss your dilemma with them
4) Post here what you are trying to accomplish with all applicable data, i.e. what your documents state.
5) Assess your assembled results and information
And then weigh your options