Board allowing Developer to not pay dues, vote, and control ACC when not allowed by CCR

What would you do if your board continued to allow the Declarent to vote, control the ACC, and not pay dues when the CCR and By-Laws give no expection to the Declarant or any builder? I spoke to a builder who has repeatedly tried to purchase lots and was denied. So the lots are not sold, no dues paid by new owner, and no dues paid by developer either. The developer did turn everything over in 2004 to 2005 but still acts as controller through a few dedicated board members who control the board. How do I bring this up at the Annual Meeting?

The documents state: (These docs never exempt any builder form paying dues. Can we collect back dues?)

Section 2. Voting Rights.

Class B will revert to class A at the later of x, y, or (c) December 31, 2003. (In By-Laws and CCR)

ARTICLE V
ASSESSMENTS - (In By-Laws)
Section 1. Obligation to Pay Assessments. Each member shall be obligated to pay to the Association annual and special assessments pursuant to and in accordance with the provisions of Article V of the Declaration, as the same may be amended from time to time, which pro- visions are, by reference, incorporated herein and made a part hereof as fully and completely as though each and every such provision were herein fully set forth.

ASSESSMENTS (In CCR)
Section 1. Creation of the Lien and Personal Obligation of Assessments. The Declarant hereby covenants and each Owner shall by acceptance of a deed, whether or not it shall be so expressed in such deed, be deemed to covenant and agree to all the terms and provisions of this Declaration and to pay to the Association: (a) annual assessments or charges; and (b) special assessments or charges for the purposes set forth in Section 4 of this Article V, such assessments to be fixed, established and collected from time to time as hereinafter provided.

Thank you Melissa.

No we are not owner controlled by law, the turn over took place in 2004 and some into 2005. We are now a Non-Profit Corpoation, LLC. We incorporated in 2004 I believe.

The Declarant sold to another builder who I refer to now as the Developer. He does not own any homes in our neighborhood. He does still have about 30 lots and a couple parcels of land that I hear will never be developed within the neighborhood.

Lots are owned by his Development Company LLC.

The builder who want to buy has one of the nicest, most expensive houses in the neighborhood. It is more of a person dislike. This builder builds in all the top neighborhoods.

I included the section of the By-Laws and Covenants on Assessments. I have read them 20 times. The Declarant is never singled out except to give him 3 votes befote December 31, 2003 at which time his voting rights reverted to class A voting rights.

I read that any member must pay dues and any deeded property owner must pay dues. Please refer to the words in the original post and tell me if you believe I am reading those wrong. Thanks. I have read them over and over and it looks to me like all members and all property owners must pay the dues.

The original Declarant owned a very large Company and money was not an issue. They did not exclude themselves from paying the dues and the new builder never change the coveants while he was in control. That is how I see it.

Thanks,

Hi John,

(j) "Member" shall mean and refer to all those persons who are
members of the Association as provided for in Article III, Section 1,
hereof.

ARTICLE III

MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION
Section 1. Membership. The membership of the Association shall
consist of (a) every record Owner, whether it be one or more persons, of
fee simple title to any real property situated within the Properties
excluding, however, the Association and those persons having such
interest merely as security for the performance of an obligation, and
(b) the Declarant subject to the following provisions of this Article
III. Membership shall be appurtenant to and may not be separated from
ownership of such real property, which ownership shall be the sole
qualification for membership.
Section 2. Voting Rights. Subject to the following provisions of
this Section 2, the Association shall have two classes of voting member-
ship: Class "A" and Class "B".
CLASS "A": Class "A" Members shall be all those Owners of
Single Family Plots, Condominium Units, and Apartment Plots with
the exception of the Declarant (except as set forth under Class "B"
membership provisions below). A Class "A" Member shall be entitled to one vote for each Single Family Plot, Condominium Unit, and Apartment Unit which he owns.
CLASS "B": The Class "B" Member shall be the Declarant. The Class "B" member shall be entitled to three votes for each Single Family Plot, Condominium Unit, and Apartment Unit which it owns. The Class "B" membership shall cease and be converted to Class"A" membership upon the first of the following events to occur: (a) when the total votes outstanding in the Class "A" membership equal the total votes outstanding in the Class "B" membership unless (1) the Declarant at that time has the right to annex additional
property pursuant to Article II, Section 2(a), of the Declaration sufficient in quantity that, if annexed, the votes of the Class "B" member would exceed those of the Class "A" members, and (ii) the Declarant evidences its intent to exercise such right within a reasonable time thereafter by filing with the Association and the Veterans Administration an affidavit to that effect, (b) abolishment by the Declarant of its Class "B" membership evidenced by written notice thereof delivered to the Association, or (c) December 31, 2003.
The aggregate vote of all Members cast in respect of Apartment
Units shall not exceed forty-nine percent (49%) of the total vote
cast on any matter pending before the Association, and the votes
allocated to Apartment Units owned by Class "A" Members and Class
"B" Members as provided above shall be reduced pro-rata to the
extent necessary to comply with this limitation.
When any property entitling the Owner to membership as a Class "A"
member of the Association is owned of record by other than a single
natural person, the person entitled to cast the vote for such property
shall be designated by a certificate signed by the record owner or
owners of such property and filed with the Secretary of the Association.
Each such certificate shall be valid until revoked, superseded by a subsequent certificate or a change occurs in the ownership of such
property. The votes of the Members shall be cast under such rules and proce-
dures as may be prescribed in this Declaration or in the ByLaws of the
Association, as amended from time to time, or by law.

I read this as starting in 2004 there is only one class, class A and we are all equal now.

Although I do have to admit I had missed the declarant in ARTICLE III,MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION Section 1. Membership. (b) the Declarant

Does this subsection keep the declarant from paying dues but not voting? Any help is greatly appreciated.

I think you may have misunderstod by owner controlled. It means do all the owners form the HOA? The developer has turned it over to you all? I do not get how they still own lots and selling them.

If the current Board is unwilling to enforce the covenants then you as a homeowner have the right to take the declarant to court to enforce them and ask for attorney fees OR you can find volunteers willing to serve and follow the covenants and replace the current Board. Depending on the size of your development and whether or not you can exclude members behind on their assessments from voting remember the declarant has a large block of votes at his disposal.

NicoleW4,

Have you asked the Board why they are not collecting, or attempting to collect, dues from lots the "current owner/developer” owns?

Is the “owner/developer” being billed? Who is responsible for sending out “dues billing”? Are you a self managed Association, or is there a management Company involved?

What section(s) of the Documents is the “owner/developer” basing his refusal to pay on, and/or do you know what the reasons are, for not paying on the lots owned?