Two Different CC&R's

Started by ScottK1 • 6 replies • 1450 views

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ScottK1 (South Carolina)
Posts: 32

Posted:

I have a question about CC&R’s and the proper way of filing them. Our HOA is 97 single family homes. Here is a run down on the CC&R’s and amendments.
June 8 1995 Declaration of covenants, “Conditions and Restriction of ____________subdivision” filed with county for start of HOA.

June 27 1995 First Amendment to above filed with the county.

Oct 9 1995 Second Amendment to above filed with the county.

Then on Nov 9 1999 there is a document named “Declaration of covenants, Conditions and Restriction of____________ subdivision”filed with the county
At first I thought this was another Amendment, but what it is the first CC&R’s rewritten. It is not an Amendment like the others. It does not reference the previous document or page number or book number that it is filed on with the county.
I believe that the development was sold to another party and they recorded another CC&Rs with the county before any homes were built.
What I am wondering is do we forget about the first CC&R’s dated June 8 1995 along with the two amendments and use the CC&R’s filed on Nov 9 1995 as a base to go off of.
All the documents refer to the subdivision by the same name.

I also found in the mess of paperwork from the HOA an amendment from 2001 that was written but never filed with the county. I checked online with the county and this document doesn't show up. This document is not valid since it was not recorded with the county. Am I correct?
Thank you for all the replies and info on my other question.
Scott

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Scott

I am not nor do I play a lawyer. These are my personal opinions only.

I would believe the last filed Covenants are the ones to be used as they are simply an update. You also say they were filed before any home was sold so in reality are they not the ones registered with the deed that all signed for?

As far as the amendment(s) made and not filed with the Covenants, my first blush would be show me where I signed for Covenants with that amendment in them if I bought after it was made. If I bought before it was made, I probably agreed to abide by any amendments made after I bought. I am sure this is a common occurence (amendments not registered) which some out here have experience with so I defer to them.

Hope this helps.

LarryB13 (Arizona)
Posts: 4,099

Posted:

If no lots were sold until some time after the 1999 Declaration was recorded, then there is no problem: The 1999 Declaration rules. If any lots were sold between June 8, 1995 and November 8, 1999 then there may be a problem.

My understanding is that once a developer starts selling lots that he is bound by the terms of his own recorded documents. If no sales have occurred the developer/declarant may amend the recorded declaration and plat at will.

If the 2001 amendment was not recorded it is not valid. Given the passage of time, even if the original document could be located and recorded it would be subject to challenge if there are no longer enough signatures from current homeowners.

KevinK7 (Florida)
Posts: 1,343

Posted:

Even though there may be two different C&Rs on file, I wouldn't necessarily consider the latest C&R to be an official document, especially if it does not include any references to the original or if the deeds do not reference those particular documents.

As an example, the neighborhood I dealt with filed C&Rs with the county stating they were the master association for several subdivisions. Some of those subdivisions' homeowners never signed anything or voted for anything that would have granted the HOA any authority to make any changes but the HOA filed a document stating that they were changing the C&Rs. That document has not held up in court but it has not been stricken from public record and if a homeowner in one of those subdivisions was to do a records search that would appear to be the most recent C&Rs on file.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Kevin,

My belief that the latter set of CC&R's would rule was based on the Scott's statement that "I believe that the development was sold to another party and they recorded another CC&Rs with the county before any homes were built." I assumed that this was a reference to the 11/9/1999 CC&R's.

I understand your comment about invalid covenants remaining in the public records. Most states seem to have no formal mechanism for removing incorrect material from recorded documents. A few years ago we had a spate of filings by far-right-wing nutcases who recorded bogus liens against various public officials. The liens remain in the books even though the courts long ago ruled them to be invalid.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Scott,

It's likely the 1999 document was a restatement of the CC&Rs.

A restatement of a document typically incorporates the original and all previous amendments into one document. It may also include additional changes. A restated document would replace the previous original and previous amendments.

As for the 2001 amendment. If there is proof in (minutes of a meeting, ballots, etc.) that the amendment was properly adopted by the membership, then typically the amendment is valid but not enforceable until it is filed with the county. However, since it has been 10 years since that amendment, I would recommend that the Association check with an attorney prior to filing it.

ScottK1 (South Carolina)
Posts: 32

Posted:

I want to thank everyone for their for there help with all my questions. You are all a big help to me in this never ending mess I have stepped into, but I am in for the long haul in getting my HOA organized and being run the proper way. I am sure this won't be the last question lol.
Scott

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