HOA or no HOA

Laws vary from state to state, but generally deed restrictions must be recorded no later than the date the property is sold.

If I understand you, the developer sold 18 lots before he recorded the deed restrictions. Unless any those 18 owners agreed to the deed restrictions after the fact, the restrictions cannot be applied retroactively.

If your deed says something to the effect that it is subject to recorded deed restrictions, then your property is part of the HOA. There is probably nothing that anyone can do to force those 18 lots to join the association.

I would also check to see if your title not only states that it is not only subject to covenants and restrictions but that it specifically states the book/page/etc. in records to which governing documents it is referring to.

I would agree that those 18 homes do not have to pay unless they signed and filed a document adopting the covenants. Nobody can force covenants onto a property after the fact.

The neighborhood I dealt with made a similar argument to a judge. Despite documentation stating otherwise, the HOA's attorney made the argument that they were in charge because people gave them money and believed them to be the HOA. The attorney argued that since a homeowner may have volunteered, attended a meeting, or even gave money to the association, they were acknowledging that the association had authority.

The judge didn't buy that.

Thanks for the info. To clarify, the lots were sold to the builders prior to the filing. The builders followed the restrictions on what is stated as far as square footage, side entry garages, etc. So when the properties were sold to the homeowners the HOA was in place. We have checked several deeds in our subdivision and the all very general so it would cover a lot of different things but mentions restrictions and so forth. The two homeowners that are contesting have multiple violations. We have been told that we can not issue fines or put liens on their property from our attorneys. .
In my mind, I think HOAs can be a good thing, but how can you enforce rules for everyone to follow when you have these 18 homeowners which are sprinkled out through the subdivision not in an isolated section. I realize this is a mess. I have an appointment with a law firm next week, but I wanted to get some outside feedback. I would think the HOA would have to be dissolved if 30% is not included. Thank you for all the info you have provided.

How to enforce: You explain the issue to the membership - that due to legal technicalities by the developer, those lots are not part of the Association and based on the advice of the Association attorney, the Association has limited authority over those lots.

Now, what common areas do you have? If there are roads, the property likely still has a private road agreement and must pay Association dues equal to their share of maintaining the roads. This might also include other common areas.

Since you've contacted an attorney, I'd suggest following their advice or seek a second opinion.