Member wants to seceed from HOA

Started by DavidR13 • 10 replies • 1721 views

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DavidR13 (Virginia)
Posts: 14

Posted:

Daver13, Virginia
One property owner does not want to pay dues because he does not use the common road. His property has a driveway which leads to a county road. Most of dues are for road maintenance, and are about $400/yr. His lawyer says it is easy to get out of the HOA. The covenants are silent about this matter, but say that each lot is subject to them. I think that the members must change the covenants to address such a matter. These can only be changed every 10 years, or 2014. At the 4/29/2012 meeting, he wants to bring this to a vote. I think that we cannot even entertain a vote, since this needs a covenant change.

Is this fellow dreaming, or is it easy for one lot to pull out?

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Depends on your docs, CCR, deeds, state laws, etc. It "is" possible, but it really all depends on the details. No two HOA's are even close to being the same. You could hire a lawyer or see what his lawyer has to say.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Quote:

Posted By DavidR13 on 04/24/2012 4:48 PM
These can only be changed every 10 years, or 2014.

Many Associations have language similar to the following:

The covenants and restrictions of this Declaration shall run with and bind the land, and shall inure to the benefit of and be enforceable by the Association, or the Owner of any Lot subject to this Declaration, their respective legal representatives, heirs, successors and assigns, for a term of twenty (20) years from the date this Declaration is recorded, after which time said covenants shall be automatically extended for successive periods of ten (10) years.

This language does not mean the CC&Rs may only be amended at the 10 year mark. This means that if the membership doesn't do anything that the document will automatically be reattached to the deeds every 10 years. This is to prevent the covenants from being unintentionally removed from the deed if the Laws define a time limit for deed restrictions.

The document itself may be amended at anytime providing the required votes are obtained and the amendment is properly recorded with the State.

Does your document have different language that specifies amendments may only be made at the 10 year mark?

TimB4 (Tennessee)
Posts: 21,062

Posted:

David,

I think the individuals attorney may be right that the process is easy. However, obtaining the desired results are probably difficult.

If the Declaration specifies the lots (plat, etc.) that the deed restrictions apply to (most do) then the board would not have the authority to change that on their own (as board may not amend the CC&Rs without membership approval).

I suspect that the members could vote to abolish the deed restrictions from one lot. If this is done by an amendment to the documents, the CC&Rs would need to be amended. If this is done by an agreement, it may require everyone (100%) to agree to it.

I would recommend that the Board run the language through the Associations attorney prior to voting on it. If the individual won't give you the wording of the motion ahead of time, once the motion is made, a second motion should be made to delay the vote so the Board may consult with the attorney as you don't know what can of worms this may open.

LarryB13 (Arizona)
Posts: 4,099

Posted:

This is a variation on the old argument that I should not have to pay school taxes because I don't have any kids in school.

I would agree with Tim that the only way to for the owner to secede would be to amend the CC&R's. The CC&R's themselves should have language contained within it as to what percentage of owners need to approve an amendment. Generally speaking, the owners themselves may amend the CC&R's by circulating a written instrument and this would have the same effect as if the board put the question on a ballot.

Personally, if I were on a board where a member wished to secede I would advise him to draw up his own amendment and seek owner approvals on his own. I do not think it is appropriate for the board to take any action for or against an owner who wishes to leave the association.

DavidR13 (Virginia)
Posts: 14

Posted:

Tim,
Thanks for the tip re a second motion. I will study the docs in greater detail to look for applicable language.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

David

Tim and Larry offer sound advice. I especially like the part where Larry said:

"""""""Personally, if I were on a board where a member wished to secede I would advise him to draw up his own amendment and seek owner approvals on his own. I do not think it is appropriate for the board to take any action for or against an owner who wishes to leave the association."""""""

Let him incur the costs to legally show the BOD how he might could do it.

DavidR13 (Virginia)
Posts: 14

Posted:

Tim,
Indeed, a more careful reading of the docs shows that you are correct. Covenants may be changed as long as it is done 6 months before the 10 year mark.
Also says that a lot owner cannot be separated from the association. So, this would require an amendment, approved by a simple majority.
Next issue is that the county might have to approve a change in the makeup of the subdivision.

Sorry about misspelling secede.

Thanks kindly for advise from all.

Dave

TimB4 (Tennessee)
Posts: 21,062

Posted:

David,

If you care to share, I'd love to read the language in your CC&Rs about amendments as I've never come across any that only allow amendments 6 months prior to the renewal of the CC&Rs.

Tim

DavidR13 (Virginia)
Posts: 14

Posted:

Tim,
The actual language is that it must be AT LEAST 6 months before the renewal date. So, it can be anytime except in that window. I have been here 7 yrs. and was always told that we can only change them at the 10-yr interval. A previous committee claims that any change means that we fall under a new set of state rules. This HOA started in 1985.

Dave

TimB4 (Tennessee)
Posts: 21,062

Posted:

Interesting.

So you must have been formed under the Subdivided Land Sales Act (SLSA) vs the
Property Owners' Association Act (VPOAA).

Then where your documents are silent about things, per § 55-508 you might actually have to abide by portions of the VPOAA. You would need to check with your Association Attorney to see if a simple amendment would force you to be fully covered under the VPOAA vs the SLSA as changes to the laws may have occurred since the Association last checked.

Thanks for sharing.

Tim

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