What Happens To Struck Down C&Rs

I got an interesting question from a neighbor today that I didn't quite know the correct answer to.

Basically, last year there was a judgement against the organization claiming to be the HOA in which the judge ruled the organization lacked any authority to do anything. This meant that their Amended and Restated Covenants that were filed with the county were null and void.

The question from the homeowner was since those C&Rs were deemed null and void, will they be removed from the books?

Their main concern was if they were to sell their property and a potential buyer were to do some research and come across the C&Rs thinking they are still in effect.

The homeowner's concern was also what is to prevent someone from insisting that since they are filed they still count? For example, the HOA insists the ruling only applies to one property even though the judge's phrasing stated they as an organization lacked authority. There are also homeowners who still believe in the documents for some reason.

Do you know if the judge issued any sort of minute entry or Findings of Facts and Conclusions of Law? If so, you should probably get a certified copy from the court and have that recorded.

Usually, records stay on the books forever so the original CC&R's will not likely be removed. Therefore, it becomes important to record any official action that negates or modifies them. One of the functions of a title search is to find all the records relating to a property so it would be a researcher's job to find both the CC&R's and the judgment that overturns them.

Essentially, my neighborhood was developed in sections. Each section had its own C&Rs. Only two sections formed HOAs. One HOA decided they were the HOA of every section. This was partially based on a letter from the developer where they granted the HOA some level of authority.

The judge's ruling stated that when the developer sold the last property in the 80s, their arrangement with the HOA ended. This caused problems because the HOA amended the C&Rs 4 years ago for some of the sections insisting they could charge non-members an assessment and force voluntary members into lifetime mandatory membership.

The judge wrote that the HOA "was not a 'homeowners' association' and "was not authorized to enforce use restrictions" after 1985. Also, since they did not meet the definition of a HOA per the C&Rs, they lacked any authority to file a notice of preservation to preserve the original covenants.

There were also some questions in regards to the legality of their conversion - they collected a simple majority of homeowners over a period of about a year and misused their notaries in collecting joinder and consent forms. There was also provisions in the original C&Rs granting a local philanthropic organization the sole authority to ammend covenants. That organization did not acknowledge the amended C&Rs.