MelindaM3 (West Virginia)
Posts: 7
Posts: 7
Posted:
I live in a "deed restricted" community with 75 single-family homes in West Virginia. The developer started building in the early 1970's.
My homeowners association was formed as a non-profit C Corp in 2004 when the homeowners took over from the developer. The HOA does not own, control, or maintain any common grounds, a pool, clubhouse, playground, golf course, etc. The streets in the community are owned and maintained by the county.
Unlike some other developments where the property deed references a CC&R document, our covenants and restrictions are directly written in each property's deed that was filed at the courthouse. The covenants haven't ever been changed.
In late 2009 the HOA sued a homeowner (filed an injunction) to stop construction of a shed in the homeowner's back yard.
In July 2010 the HOA had an annual meeting. The discussion about the lawsuit was "we filed suit because the shed violates the deed restriction stating that no external structures are permitted, the case is progressing, and on the advice of our attorney we can't say anything else."
Later in 2010 the HOA lost the suit, and the judge ordered the case dismissed with prejudice.
A few weeks ago the HOA had an annual meeting, the first since the July 2010 meeting. Yes, we went over two years between meetings. At this meeting we homeowners finally learned that that the HOA lost the lawsuit. The HOA president described the judge's ruling as "scathing" and said that it contained the following:
- While one covenant in our deeds states that there will be an "Architectural Review Board" that must approve exterior changes to the homes, the judge ruled that because there were never written standards created either by the developer or the HOA, that the covenant is unenforceable.
- Because other structures, including pools, fences, a doghouse, and children's play sets had been erected - some going back to before the HOA formed - and those homeowners were not cited/fined/sued, the HOA had lost the power to enforce the "no external structures" covenant.
- Because the HOA hadn't enforced or addressed violations of many other covenants, again some dating back even to before 2004 when the developer was still in control, the HOA had essentially given up it's power to enforce them as well. The current HOA president even admitted in the meeting that he had been quietly operating a home-based business (as an LLC) for over a decade, so he was in violation of the "no commercial use" covenant. And no, he did never cited himself for it, and the LLC is still active at his home address according to our Secretary of State's public records lookup site. So that covenant is now unenforceable.
- While the covenants are in our deeds, there is no stated process in our deeds for amending the covenants, so according to the judge any change would require filing a new deed with the county. This requires approval from 100% of the property owners as a property deed can't be changed without the owner's permission. Obviously 75 property owners are never going to agree 100% on a change to covenants, never mind that each homeowner would have to pay fees for filing an updated deed for the changes (estimate $3000 per homeowner from the HOA's attorney in legal and court filing fees).
I haven't read the case file or the ruling yet, though another homeowner plans to get the documents from the courthouse and make copies for everyone. IMO the HOA BoD should have at least had the ruling distributed two years ago. People in the community were quite upset to be finding out only now about the ruling.
If you've taken the time to read through all these details, my thanks. On to my questions:
1) While I know you can't read the judge's ruling or my deed, does anyone know if deeded convenants are severable or not? I can't find any language in my deed stating that if one covenant is deemed unenforceable then the remainder can stand. So, do they normally stand or fall as a group, or individually? Some homeowners seem to think that without a severability clause we have nothing left.
2) Do the current board members need to be personally concerned since they did not inform homeowners for two years about the decision? Several of the homes have been resold since then, and a new resident at the meeting indicated that she wanted to move into a community with a strong HOA, and only now she is finding out that the HOA has almost no power. To say she is PO'ed is an understatement.
3) Do the current board members need to be personally concerned if after the ruling the HOA did send out citations for violations even though the particular covenant was struck down by the judge? The board members have not changed since the case was filed in 2009.
4) It has been suggested that the HOA be terminated and a new one formed the "right way". My understanding is that:
- terminating the current HOA would require the approval of 80% of the affected homeowners (I found the appropriate code in WV law),
- if the HOA is shut down we would then have to wait a year before forming a new one, and
- forming a new HOA would require approval from 100% of the affected homeowners.
Frankly I don't see the HOA terminating as too many people want one and know that if it shuts down there are people in the community who would never vote to start up another one, especially those who got citations and paid fines for covenants that had been deemed unenforceable back in 2010.
Finally, the four people currently serving on the BoD (Pres, VP, Treas, Sec) are all resigning early next year; the Pres basically stated that he doesn't see the point of heading up an HOA that lacks the ability to enforce covenants. In fact, at the recent meeting he was the one who suggested that it be shut down.
After all that, my husband suggested that I run for a position on the Board as I am good at cleaning up messes and smoothing ruffled feathers. Before I throttle him for the suggestion, does anyone here have any experience as a member of a relatively toothless HOA for a group of really PO'ed homeowners?
My homeowners association was formed as a non-profit C Corp in 2004 when the homeowners took over from the developer. The HOA does not own, control, or maintain any common grounds, a pool, clubhouse, playground, golf course, etc. The streets in the community are owned and maintained by the county.
Unlike some other developments where the property deed references a CC&R document, our covenants and restrictions are directly written in each property's deed that was filed at the courthouse. The covenants haven't ever been changed.
In late 2009 the HOA sued a homeowner (filed an injunction) to stop construction of a shed in the homeowner's back yard.
In July 2010 the HOA had an annual meeting. The discussion about the lawsuit was "we filed suit because the shed violates the deed restriction stating that no external structures are permitted, the case is progressing, and on the advice of our attorney we can't say anything else."
Later in 2010 the HOA lost the suit, and the judge ordered the case dismissed with prejudice.
A few weeks ago the HOA had an annual meeting, the first since the July 2010 meeting. Yes, we went over two years between meetings. At this meeting we homeowners finally learned that that the HOA lost the lawsuit. The HOA president described the judge's ruling as "scathing" and said that it contained the following:
- While one covenant in our deeds states that there will be an "Architectural Review Board" that must approve exterior changes to the homes, the judge ruled that because there were never written standards created either by the developer or the HOA, that the covenant is unenforceable.
- Because other structures, including pools, fences, a doghouse, and children's play sets had been erected - some going back to before the HOA formed - and those homeowners were not cited/fined/sued, the HOA had lost the power to enforce the "no external structures" covenant.
- Because the HOA hadn't enforced or addressed violations of many other covenants, again some dating back even to before 2004 when the developer was still in control, the HOA had essentially given up it's power to enforce them as well. The current HOA president even admitted in the meeting that he had been quietly operating a home-based business (as an LLC) for over a decade, so he was in violation of the "no commercial use" covenant. And no, he did never cited himself for it, and the LLC is still active at his home address according to our Secretary of State's public records lookup site. So that covenant is now unenforceable.
- While the covenants are in our deeds, there is no stated process in our deeds for amending the covenants, so according to the judge any change would require filing a new deed with the county. This requires approval from 100% of the property owners as a property deed can't be changed without the owner's permission. Obviously 75 property owners are never going to agree 100% on a change to covenants, never mind that each homeowner would have to pay fees for filing an updated deed for the changes (estimate $3000 per homeowner from the HOA's attorney in legal and court filing fees).
I haven't read the case file or the ruling yet, though another homeowner plans to get the documents from the courthouse and make copies for everyone. IMO the HOA BoD should have at least had the ruling distributed two years ago. People in the community were quite upset to be finding out only now about the ruling.
If you've taken the time to read through all these details, my thanks. On to my questions:
1) While I know you can't read the judge's ruling or my deed, does anyone know if deeded convenants are severable or not? I can't find any language in my deed stating that if one covenant is deemed unenforceable then the remainder can stand. So, do they normally stand or fall as a group, or individually? Some homeowners seem to think that without a severability clause we have nothing left.
2) Do the current board members need to be personally concerned since they did not inform homeowners for two years about the decision? Several of the homes have been resold since then, and a new resident at the meeting indicated that she wanted to move into a community with a strong HOA, and only now she is finding out that the HOA has almost no power. To say she is PO'ed is an understatement.
3) Do the current board members need to be personally concerned if after the ruling the HOA did send out citations for violations even though the particular covenant was struck down by the judge? The board members have not changed since the case was filed in 2009.
4) It has been suggested that the HOA be terminated and a new one formed the "right way". My understanding is that:
- terminating the current HOA would require the approval of 80% of the affected homeowners (I found the appropriate code in WV law),
- if the HOA is shut down we would then have to wait a year before forming a new one, and
- forming a new HOA would require approval from 100% of the affected homeowners.
Frankly I don't see the HOA terminating as too many people want one and know that if it shuts down there are people in the community who would never vote to start up another one, especially those who got citations and paid fines for covenants that had been deemed unenforceable back in 2010.
Finally, the four people currently serving on the BoD (Pres, VP, Treas, Sec) are all resigning early next year; the Pres basically stated that he doesn't see the point of heading up an HOA that lacks the ability to enforce covenants. In fact, at the recent meeting he was the one who suggested that it be shut down.
After all that, my husband suggested that I run for a position on the Board as I am good at cleaning up messes and smoothing ruffled feathers. Before I throttle him for the suggestion, does anyone here have any experience as a member of a relatively toothless HOA for a group of really PO'ed homeowners?