CC&R's have not been enforced

Where to start? Have you gotten a copy of the CC&R's on file at the courthouse? Those are the ones to start with. You may find there was an expiration date written into them. Considering that they could be 30 years old and many expire at 20.

Sorry but you all do need an attorney on this one. You need one to refile the paperwork, write the changes, and make sure you have the proper voting instruments for the changes. Changes may need a special meeting or a petition. All of which is in your documents. Which by the way CC&R's typically need the highest amount of membership vote which is 90 to 100% in some cases to make changes. You think you have that many willing to vote?

Don't worry so much about making your rules compliant to county, city, state, or federal laws. There should already be a caveat in them that the rules can't supercede any of those laws. It's kind of inherent law that HOA's can't cancel out local, state, federal laws.

As for the existing violations you may as well give that up and start over. That may mean allowing them in your new documents rewrites. A HOA is managed by it's owners for it's owners. If the owners are okay with a certain type of violation say for example white washed fencing instead of plain wood, then change the rules to be okay with white wash fences. It is OKAY to do this if the majority of owners think it's okay.

You have a long long road ahead of you. Are you volunteer HOA or a mandatory membership one? You say your all responsible for roads. Can you just turn those over to the city/county to take care of it and just forget having the HOA? Something to consider if possible. HOA's don't add value to anyone's houses. They just make the homes more attractive to buyers and split costs of expensive items amongst all the owners/members.

As Melissa said, where do I start. Sorry about the length of the reply but I'm trying to respond to all the issues you posted.


I suspect that the Association still exists. The Corporation known as Association, Inc. may or may not have been administratively dissolved by the State.

If you are restarting the Association, you should check into the corporate status.
A Corporation is considered a legal entity and as such, it provides some benefits to the Association and it's members.

The status can be verified by going to West Virginia Secretary of State Business Search page.


Yes they can be. Here is a link to an earlier thread on this form that may be of assistance: Subject: How to read a statute (law)

Here are links to applicable WV statutes:

WV Uniform Common Interest Ownership Act

West Virginia Nonprofit Corporation Act applicable if you are incorporated.


My Association had a similar problem in that our Architectural Committee (the approving authority) had, over the years, given verbal approvals/disapprovals and failed to keep all written approvals. The records were in a mess, so we were unable to identify things that were or were not approved. This is what we did:

1) Organize the Architectural records/files

2) Searched past minutes for approvals/disapprovals that may have been documented there but not in the files.

3) Summarized those approvals/disapprovals (see attached)

4) Inspected the properties (lots) and identified all likely exterior changes

5) Compared an individual Lot's exterior changes to the summary sheet.

6) For those items without approvals on file but would likely have been approved, the committee wrote the following letter (note we included a picture of the item as this helped to show exactly what we were talking about):

"We are writing this letter to request copies of any documentation you may have concerning [this item].
This committee can easily see where a waiver would have been granted. Expecting that a waiver was granted, this committee is requesting the above information, if available, so your record may be updated. If information is not available, please let us know so we may generate a memorandum to cover this expected waiver.
This Committee is not asking that you remove the object. We are only trying to properly document it, which should allay any concerns of future Architectural Committees."

If the response was that there was no documentation, we would then create a simple memo:

"This letter is to document approval for [item]
The Architectural Committee, as of this date, hereby acknowledges that all the above items are recognized as, or considered to have been, previously approved.

7) For those items without approvals on file and would likely have not been approved, the committee wrote the following letter (note we included a picture of the item as this helped to show exactly what we were talking about):

"An inspection of your property has identified the following item/s that our files do not indicate they were approved, as required by section xx of the Declaration of Covenants. Therefore, we are requesting copies of any documentation you may have concerning [this item]."

Note: We didn't require removal with this letter as, depending on the item, it could be more problematic than required and a wavier may be a better approach.


For these items, we sent the following memo (again we included pictures):

Dear Homeowner,

In regards to the following item/s:

Example – Storm Door

The Architectural Committee, as of this date, hereby acknowledges that all the above items are recognized as, or considered to have been, previously approved but are not in compliance with the covenants or current guidelines.

Since the above items have been previously approved, and providing they are properly maintained, they do not need to be replaced in order to comply with the current guidelines. However, at such time that the item is replaced it may not be replaced with a similar style.

Any replacement must meet the guidelines in use at the time and receive approval from the Architectural Committee.

If any of the above items are still on the home when a disclosure package is requested, a similar statement will be made within the disclosure package.

This Committee is making this statement based on the guidance from, and with the approval of, the Board of Directors.

This process allowed us to document the issue and move forward doing things the correct way.


By going through the above documentation, you would likely be protecting the Association from a bad judgement as you would now be in compliance with §36B-1-112. Obligation of good faith. That is, the Association is now making a good faith effort to enforce.

I was unable to locate the section of statute that specified the a lack of enforcement may be cause that section to be unenforceable. However, I wouldn't worry about it too much. This will only apply if a member challenges an enforcement action in a court of law and the court rules that it's unenforceable.

If there is support to reactivate the Association and start enforcing the covenants, providing you initially work on documenting vs. punishment, this may not be an issue to worry about.


Yep, this happens. When a covenant is in conflict with a Federal/State law or County code/city ordinance, that specific section that is in conflict is not enforceable. As an example, Satellite dishes. Many covenants have language that prohibit these. Federal regulations trump that covenant.

A typical order of precedence is:

Federal Law
Federal Regulations
State Law
State Regulations
County Codes
City Ordinances
Declaration of Covenants, Conditions and Restrictions (CC&Rs)
Articles of Incorporation
Bylaws
Resolutions (additional rules/regulations/policies adopted by the board)

Note: often state law will defer authority to the Associations governing documents by using phrases like "if the Articles or Bylaws allow" or "if the Declaration is silent then". Therefore, you need to fully read the State laws to see if they do or do not fully apply.


Simple, The Association has no authority to enforce Federal, State, County or City violations. Therefore, if you see one, contact the appropriate Federal/State/etc. authority and let them deal with that violation. This way, it may even correct the Covenant violation and the Association didn't have to do anything but make a phone call.


Not having access to the language in your CC&Rs, it's difficult to provide a good response. Perhaps if you could cite that section of the covenants about assessments a better answer can be provided. However, this is what I can provide to you:

Depending on the language in the governing documents and the requirement of WV law to carry specific insurance on the common elements (see §36B-3-113. Insurance), you may have zero choice but to raise assessments. At $100 per year and only 36 lots, I don't see how $3,600 a year is enough to properly maintain the road, pay insurance and other administrative costs of the Association. The Association may need to seek a court order to declare that section of covenants limiting assessments to only $100/yr unenforceable.

As far as getting people to pay, you may need to become tough and (at the very least) file liens.


I'd suggest getting the Association files, corporate status, etc. squared away first. Then worry about enforcement issues. Worst case, you may have to make an example. Just be sure to apply enforcement of any violations equally.

You can't go after one person for a shed unless you go after everyone for sheds. If you do, you run the risk of a court ruling it selective enforcement.


This might need to be the Associations example that they mean business.

Of course, the members may end up taking sides in the issue and you could be in the minority for doing the right thing. However, every Board member takes that risk and any associated consequences.


As Melissa pointed out, making the draft is one thing. However, you will still need an attorney to make sure that the language is in compliance with State laws and standard legal practices. Therefore, it should be reviewed by an attorney before being voted on.

Prior to the legal review, if this is the path you desire, you should form a committee and allow any member who desires to serve on it. Then have the committee make the draft. The more people who are involved in the process the better the chances are of having the amendments pass.


If the membership is agreeable to it, I think your attorney had the better idea. Abolish the deed restrictions, put a road maintenance agreement in place of them and have an Association oversee the maintenance of the road - period.

Hope this helps and again I'm sorry for the length,

Tim

Tom

A word of caution. It seems like you want to reactivate the HOA to come down on people for violations. I would suggest the approach that it is for the better good of us all to support this. Get people to buy into it. Get them to support it (time and/or money), get it going, elections for a BOD, committees, etc.

Worry about the violations once the HOA is set up and active.

Jeanne,

I thank you for the compliment.
Fairfax County (Virginia) has actually written an Association manual based on VA law. Here is that link:

Fairfax County Community Association Manual

The good thing about this is that they keep it updated as laws change by issuing supplements. To check them out use this link:

Homeowner and Condominium Associations

JeanneK3....I'm in a HOA in MD...Worcester County. I would be most interested in 'your book" and would encourage my current bod to purchase it. Please keep us/me posted on the availability of your book. Thanks. Barb

Yes.

Typically,and I say typically because I'm sure there are some documents that defer control, if there is a conflict between the bylaws and the covenants, the covenants control (what you need to comply with).

The Covenants are deed restrictions and are essentially the contract you agreed to when the property was purchased. The Covenants also typically creates the Association and is where the Association gains a most of it's authority. Once the Association incorporates, the Corporation may have gained additional authority based on State Corporate laws.

The Bylaws are typically the rules for management and administration. Bylaws can also include more than just administrative procedures but their main purpose is to layout the procedures to administrate the Association. Additionally, Corporate laws (and sometime HOA/COA laws) will require specific things be included within the Bylaws.