Can CCR's be amended out

I live on a street that shares a retention pond. Part of the CCR's stated that after 5 lots were sold that the HOA would be formed or owner would do enforcement of the CCR's and maintain the pond. That how it been for five years with no cost to owners. After five lots sold it was not turned over to the owners.

The street has six owners living on it. There two more that don't live on the street or effect our values. The lots are 5 acres. We have pretty strick CCR's.
All owners agree to them. When some owner were violating them to such a degree that values were being lowered. I suggested we form the HOA so we have an ACC made of owners on the street.

I did not want to be on the board but did want my builder husband of 35 years to be on the ACC. He was with 2 others.
None of my neighbor have built a house, lived in a high end home, lived with CCR's or HOA.

What has happen is after we voted in all the position than we voted on bylaws. That took 8 months to agree and we now have learned this current board want to lower the standards of the CCR's.
They all have conflict of interest.
In fact all 3 board members are are out of compliance. There a clear conflict of interest for them to set fines and fees. However because we are so small. We can't vote them out. The attorney we hired gave us a set of bylaws drafted for a large 155 home subdivision. I voted them in knowing they were over kill but trusting who was on the board. Well lesson learned.

I learned a lot about my neighbors character and it all bad.

They board realized that if they made one person get into compliance they all had to.

The homes were built and lived in almost 2-5 years before we formed the HOA. We never were given these bylaws before closing and the attorney who was supposed to represent the owners now represent the HOA. The HOA now with all the power because of these bylaw isn't going to set fines and fees and do enforcement. The only reason we formed the HOA. They become drunk on power wasted money and started to be abusive to us and other member.

I have been put through hell for three years by this half form HOA> They have done nothing but spend money amending the CCR' to what they want. Not what we agree to at closing. In the CCR's it state that all documents will be provided before closing. Now there changing them.

Each time there wish list fails to get voted in and we start to send out notices to those board member out of compliances they call for another vote to amend. Now they called to amend out all restriction . I was out of town and refused to respond to my request to hold off on this vote so I had to get an injunction.

Isn't this a violation of ultra virus. Isn't the duty of a board to uphold the governing documents and avoid litigation.

Under amending of the CCR's it state that you can amend with a 2/3 majority. However it also state the CCR's are binding for 35 years and after 30 years if a instrument is signed with 2/3 majority they can be extended or remove.

I have never heard of amending out CCR's and certainly when they are a restriction on your land for 35 years the intent of the CCR's were to be binding. It also state if contrary to anything that the more restrictor applies.

To date. I had to hire a lawyers read this stuff and send a letter.. Cost to me 1400.
I now had to file for a injunction to block this vote. 2500- 8000.

Where are my rights as a owner who built a 4000 sq ft home and invest big bucks. Can you amend out all the CCR's with a 2/3 vote? I heard of lateral changes but never heard of more restrictive or removing protection that will harm values.

They want to put rights to lien for a pond that needs to have trees that grow up keep trimmed and dredged maybe every 10 years. So minor cost. However they want the right to lien our home and foreclose and they also wanted to be able to buy it.

I know the minute these CCR's are removed. My well will in danger since the Board President has turned his 5 ac residential use lot into a farm. He wants cow. My well on his land. The other board member rents his house out as a vacation rental. Its not allowed. The other board member has chicken that too is not allowed. The ACC member is not landscaped after 5 years after he built. His home is 5000 sq ft. He just doesn't want to spend the money.

Their attorney fees are being paid by the other members and I am paying for their and mine. Its a true real estate nightmare.

Can amending of CCR's remove protection with 2/3 vote or is would that take 100%. Is a HOA board who is trying to gain control over their neighbors land in violation of ultra virus?

I ask them question they ignore me. I asked to see the proxy ballots for the bylaw vote and they stall for 4 month now their at a lawyers office in his vault and in another town a hour away.

They circulated a document to amend out the CCR's withheld it from two owners who opposed them and put it out as thought it was drafted by a lawyer with his name on it. They drafted it and practice law and just put his name on it. They have still not provided the Sept 3o meeting where they entered this petition into the minutes. Than they shredded it when I asked for a copy. The only one who signed it were all the board and what left of the ACC board. Now no minutes.

When your own board who duty was to uphold the CCR's wants rid of them. How is that and HOA board

Their action are destroying the subdivision reputation and no one on the street talks to each other. Owner now all want to sell. So some 70 year old man can have a farm who was voted in and not can't be voted out. Out of 8 owner only three voted. HE voted himself in and the other board member voted herself in and the one ACC member who refuse to landscape. There not enough other involvement to make them stop.

Sorry for the lenth but this isn't even the half of it.

Mary,

Welcome to the forum. Let me try and summarize the main issue your posting about:

1) You live in a small subdivision that had CC&Rs but did not have an HOA
2) There was an issue of some not complying with the CC&Rs
3) You encouraged an HOA to be formed to address that issue
4) The members who are serving on the Board desire to change the CC&Rs to lower the standards.
5) You prefer the higher standards and don't want the change

Now let me try and address other questions in your posting. It should be noted that I am not an attorney and I do not work in the legal profession. For legal advice, contact a local attorney.


This is confusing. There were no bylaws because there was no formal HOA. Once the HOA was formed the membership voted on the Bylaws. Now you are complaining that you never received the Bylaws when you moved in???? Perhaps you mean a different document. Can you clarify?


Yep, that does happen.
20/20 hindsight would have suggested that you would have been better to enforce the covenants yourself through the courts rather than forming an HOA so the HOA could be the enforcer.

All I can say is that there are intended and unintended consequences for every decision. This is one of those unintended consequences.

Yes, their may be a conflict of interest. However, if they are enforcing the covenants on everyone equally then that conflict isn't stopping them from doing the job properly. They, like you, have a personal goal on what should be in the CC&Rs but, per your posting, they are following the proper procedures to make those changes.


The only thing known for sure is that this was the reason you wanted the HOA formed. The others may have wanted to form the HOA for other reasons.

Additionally, you said yourself that you didn't want to serve on the Board. This allowed those who did want to serve to serve. I'm sorry it's not what you wanted, but from your posting it sounds like everything is being done properly.


Governing documents can be changed.
Just like congress, there is nothing preventing those in charge from trying over and over again to get changes they want.

I have a different concern that I don't think you thought of.
Now that there is an Association, I suspect that it's their responsibility to maintain the storm water retaining pond. Has anyone done a Reserve Study? Has the Association started setting money aside to pay for expected expenses for this pond? This is something you might start demanding the Association starts doing.

For more information on Reserve funds see this thread within HOATalk:
http://www.hoatalk.com/Forum/tabid/55/view/topic/forumid/1/postid/103517/Default.aspx


No. Ultra Vires is a Latin term meaning "beyond powers."

The authority and powers of the Association would be defined within the governing documents and applicable State laws.

Typically, the main function of an Association is to maintain the common areas and common amenities. The governing documents do usually authorize an Association to enforce the covenants. This is the same authority the CC&Rs give each individual member. However, there is typically no requirement that enforcement actually takes place. Similar to each member having the option to enforce or not, the Association has that same option.

Therefore, it appears that your Board is not overstepping their authority. They are simply choosing not to exercise that authority (just as you chose not to exercise your authority to enforce the covenant but instead lobbied for the Association to be formed in the hopes that they would enforce).


CC&Rs can most certainly be amended and other Associations have done so. My Association last amended our CC&Rs in 1993. The method to amend the document should be contained within the document itself. Typically, if the document is silent, there may be an applicable State law that specifies how the document can be changed.

As for the more restrictive being applied I think you may be misreading that section. Their is an order of precedence for governing documents. If there is conflict between two documents (for example: one document says you may have sheds and another document says that sheds are prohibited) then the high precedence document is the one that has to be complied with (i.e. is in Control).

However, it's not always that simple. Many laws and documents may defer control to a lower document. Therefore, it's important to read the entire document/law carefully to determine which document actually has control.

The typical order of precedence is:

Federal Laws
Federal Regulations
State Laws
State Regulations
County codes
City Ordinances
The Declaration of Covenants Conditions and Restrictions (CC&Rs)
The Articles of Incorporation (if your Association is incorporated)
The Bylaws
Resolutions (formal decisions placed in writing by the Board. Example: fine schedule, additional rules and regulations, etc.)

The deed restrictions (the CC&Rs), based on what you are posting, after 35 years may be extended for another length of time or abolished completely based on membership vote at the time. Again, the documents may typically be amended at any time.


Your rights are within the applicable laws and the contract (the CC&Rs) you agreed to when you purchased the property. If the CC&Rs only require 2/3 to amend then yes, they can be changed at anytime with a simple 2/3 vote. Prior to that, it's likely the developer could have changed it on their own without any membership vote.

The devil is in the details as they say.


It is typical for Associations to be able to lien.

Since it's likely that you will pay your Assessments, this will not be an issue for you. However, what if your neighbor doesn't pay their assessment? How would you suggest the Association collect that assessment if they can't lien?

Mind you, the Association will still have to comply with the Lien laws of your State.


Well, you can exercise your right to enforce the covenants. This would be done through the courts. You would bring legal action against your neighbor, NOT the Association, for having chickens or renting out the property.

This has always been an option to you.


If legal action is taken against the Association, then yes, the membership pays the Association legal expenses. Actually, the Association should be paying for insurance to cover a lot of those expenses.

If association funds are being used to defend an individual who happens to be sitting on the board for an action that is not association related, that would be improper and perhaps illegal.


Can the CC&Rs and other governing documents be amended? The answer is yes.

Can they remove all protections without a 100% vote? That is a legal question and one you need to ask your attorney who will have access to your governing documents and know the laws of your State.

Is the HOA board exceeding their authority? Based on what you've posted, I don't think so. They just aren't exercising all of it the way you want them to.


But they are available for review.

Mind you, I agree with you. You shouldn't have to drive an hour to see them. However, the board appears to be in compliance.

Have you checked on what laws are applicable?

Try the following links:

Community Association Network a sponsor of this site.

HOA-USA Washington State laws page.


Well, this also means that the Board has no proof of what did or didn't occur at that meeting.

If your Association is incorporated, you may want to make the request through the registered agent of the Association. The registered agent is typically the Associations attorney. However, you can check with the Washington State Secretary of State web site.


Even small Assocaitions have membership apathy.

Have you contacted those who didn't vote and requested their proxies?
It appears that if only 3 out of 5 voted, that if you can control the proxies of those who didn't bother to attend, you could control the votes and vote the individual out of office. Of course, you need to find someone (perhaps you) willing to serve that will make the changes you desire to make.

Hope this helps.

Tim

In answer to the question posed in the title, "Can CC&R's be amended out?" the answer is probably yes.

Most CC&R's contain a provision for amendment and that could include their termination.

The terms I have seen most often require that a certain percentage of owners "execute an instrument" (indicate their approval by signing the proposed amendment) and record the instrument. If those are the terms in your CC&R's, then a vote becomes irrelevant. Not only is the vote not necessary it is not the method most commonly specified.

Seeking an injunction to prevent a vote is a waste of time and money if the amendment process is as above. Anyone can circulate "an instrument" with or without the participation of the board and they have an unlimited amount of time to collect the required number of signatures.

Tim,

Mary's post was a bit difficult to read and comprehend. At one time I used to rant and rave over the poor spelling and grammar I encountered on the internet but I have long since given up all hope of correcting anyone. Thus, I made little criticism of what I encountered here but it certainly colored how I interpretted what I read. You read the OP differently than I did and came to a different conclusion.

I have no idea what was in the original CC&R's and until I see them I cannot say who has done what to who.

here are the facts.

The bylaws vote had the deciding vote taken as a contingent vote and not disclosed in the minutes. I reviewed the video of the meeting and found this out. They took a conditional vote and called it a yes vote. One of the member not in good standing. who is mentally handicapped and fought tooth and nail to block this HOA. The board member and other had met in private with him and clearly promises were made. Vote us in and we will not do enforcement. That his violation will be grandfather in. The CCRs do not allow for grandfathering. You can hear talk about the Architectural committee member also asking about grandfather his violation in.

the HOA duties are to uphold governing documents and not be used by member on the board to violate them. If that is the advise some of you are suggesting is legal. That is not. That is a violation of the duties of a board. The only document attached to my land and signed and agree to are the CCR's. No bylaws were provided and now this vote is tainted.

Board members must be in good standing to vote. Violation of the governing documents would not make them an member in good standing.

The video show the HOA board president going. So your vote is contingent on me finding out about grandfathered. That is clearly what the mentally disabled owner is asking that he agrees to vote yes to pass the bylaws if he grandfather in.

That HOA president never got back to him because he didn't want us to know what he is up to. They also did not put this in the minutes but its in the

That owner now rescinded his vote in writing so that makes the vote for the bylaws nil and void.
The attorney after the fact sent out a letter saying sorry I didn't get back to you ( that would be a year). But you can't grandfather in violation but the bylaw vote still stand.. We'll see.

So sounds like amending out the CCR's can happen and be used as harassment from here on out.

So now my position is the bylaws vote did not pass. Contingent voting is illegal. Lack of disclosure of the intent of the documents also is illegal. They clearly read enforcement will be the duty of the HOA board. I would of voted different had that been disclosed. That fraud when a HOA member has a conflict of interest.

None of you addressed conflict of interest of the HOA board. Why would that not be violation of ultra virus. When you duty it to uphold the CCR's and your in violation but continuing the act as a board member.

The HOA board was voted with only three members voting out of eight. How many member have to vote to vote in a board?

The two board member left and the one assc. member. All three are in violation of the CCR's.

So that vote too was not legal per the way the bylaws their using state.

My injunction is to say. These owner are in violation of the CCR's and per the bylaws they must be in compliances to vote. So they can't vote.

So if they are not voted in. The dues bills they collected now too are illegal. That bring up the FTC violation of collecting debt as debt collector and using excessive force to do so.. They put interest on it and have done it both time than called for a vote . Forcing owners to pay to be able to vote. They also put out a fake bill so they had lawyer money. They did this now twice right before a vote to put pressure on the member who were contesting the bills so if they wanted to vote to protect there property they would have to pay.. That a violation against FTC rules on collection practices.
Per the above what legal right did they have. Are CCR's provide nothing in them for collection of dues.

I say that also if violation of ultra virus. Breaking federal laws.

Tim,

I will have this tattooed on my back. This is one of the wisest statements I have ever seen on this forum.

My question would be how long ago did this happen?

Was there a functioning HOA at the time? Per your original posting, there were 3-5 years before an HOA was formed.

Again, YOU likely have the authority to force compliance with the CC&Rs by taking the individuals to court for breach of contract and seek an injunction to bring them into compliance.

From what I'm reading, you encouraged having an Association so the Association would do what you were not willing to do (enforce the covenants). Since the Association isn't doing the enforcement you still have the option of bringing your neighbors to court for violations of the CC&Rs.

I see the following options:

1) Collect proxies from those members not participating and vote the bums out. Then vote yourself into office so you can run the Association the way you want to.

2) Consult with an attorney who will have access to all of the information you have to see what legal recourse you may have.

3) Try to live with the issue and make compromises (as these are your neighbors)

4) Sell and move.

The choices are yours to make. I would offer one word of caution that you have already learned. With every decision there are intended and unintended consequences. Try to determine as many of the unintended consequences that could occur so you can make a more informed decision.

Tim

sorry my post are out of sequence to who I am answering.

Tim these violation have been going on since owners finished their homes but have been aware of them for the 3 years we tried to do enforcement thought the HOA.

There is no grandfathering of CCR's allowed in our provision.

It state single family use. One neighbor has turned his home into a vacation rental. Renting out to multiple families. Now it appears he moved and plans to do it full time.

I am amending my blocking of the vote to say each owners out of compliances and name them

The Board President wants a farm. So he has allowed all this to happen so he gets his.

My well on his land. Seeing how he has violated the CCR's so far. To allow them to remove them would surly put the street back to what it looked like before attorney letter flew and my well would be at risk. He purposed to have unlimited farm animals and wanted two cows.

If that is imposing my will on them to say hell no. Than so be it.