declarant

Started by CarolS12 • 6 replies • 1763 views

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CarolS12 (Washington)
Posts: 12

Posted:

When is a declarant no longer a declarant? Building is completed and HOA was given authority. Now every time 'declarant wants to add something new, he says he can do what he wants because he is the declarant.
Carol

PeterD3 (Florida)
Posts: 708

Posted:

The declarant you are referring to would be the HOA developer or sponsor of the community or [condo] building. Typically one in the same.

This person or entity is typically the one who is to benefit financially from it's construction. Thus they typically have majority control of the community until specific conditions are met, such as a future date, number or % of lots/units sold, etc.

This is the key to determine if you are still under declarant control.

Once the conditions have been met the HOA assumes control by process of law and the declarant has no authority or control.

MatthewW4 (Arizona)
Posts: 500

Posted:

The Declarant is the person or entity that recorded the original deed restrictions. A Declarant normally controls the association by giving himself the voting power to control who sits on the board of directors. As Peter stated, there is usually a point where control passes to the homeowners.

The powers that the Declarant has after he has passed control over to the homeowners ought to be stated in your deed restrictions. That is where you should look to see what he may do.

My association is made up of large (36-acres and larger) parcels scattered over a large non-contiguous area. The Declarant gave himself the right to annex additional property into the development and has done so numerous times even though the property owners run the association.

The Declarant is usually a separate entity from the association. The declarant may transfer or assign his rights to anyone else, including the association, or he may retain them for as long as he wishes. In most developments, the Declarants seem to show little interest once they have sold that last lot.

CarolS12 (Washington)
Posts: 12

Posted:

The declarant bought the unfinished parcels after the original developer gave the property back to the bank. When the declarant took posession, he gave the HOA control over operation and he completed the building process. Things agree not going well with this relationship and he's making threats as a declarant. It's fuzzy about when he will no longer the declarant.

CarolS12 (Washington)
Posts: 12

Posted:

The declarant bought the unfinished parcels after the original developer gave the property back to the bank. When the declarant took posession, he gave the HOA control over operation and he completed the building process. Things are not going well with this relationship and he's making threats as a declarant. It's fuzzy about when he will no longer the declarant.

MatthewW4 (Arizona)
Posts: 500

Posted:

Carol,

I'm not certain if I understand correctly, but normally just buying or acquiring unsold lots would not be sufficient to transfer the declarant's rights. Those rights are separate from the real estate and can be transferred or assigned. If the original developer did not transfer his rights when he gave the property back to the bank, then he is still the declarant.

Even if the new developer has the rights, they extend only as far as the original declaration allows. For example, if the declaration forbids wrought iron fences the new declarant could not install them unless there is provision in the CC&R's allowing him to do so.

I worked for a brief period several years ago for people who called themselves "developers." They were hopelessly ignorant of the law because they truly believed that none of it applied to them. Your association may have to seek out legal advice on how to handle this new developer.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Carol,

You need to read your Declaration or CCRs to see what rights the Declarant has. Usually, you will find the Declarant's rights enumerated in an easily identified section that covers that specific topic. The fact that control of the association has passed from the Declarant to the unit owners does not necessarily mean that the Declarant no longer has any rights. Often, the Declarant retains certain rights as long as there are lots or units to be sold.

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