Amending Covenants and Restrictions

Started by RobertS49 • 7 replies • 1757 views

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RobertS49 (North Carolina)
Posts: 6

Posted:

Can our HOA amend our Covenants and Restrictions in a way that is contrary to the original intent of the developer when creating the HOA? This amendment will do away with a fundamental provision of the original Covenants & Restrictions, which provision [age restriction] was the reason a majority of the homeowners purchased property and constructed homes in this HOA.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Providing you have enough support of the members to amend the CC&Rs, then typically yes.

However, since the issue deals with Age Restriction, you may want to run the issue by an attorney to get a legal opinion on what would be needed so the amendment could withstand a legal challenge.

Remember that the Housing for Older Persons Act (HOPA) only requires 80% of the homes to be occupied by a person who is 55 or older to retain an age restriction on the community. Therefore, depending on the actual reasons behind the issue, there may not be a need to amend the CC&Rs.

Also note that even though you are in an age restricted community, the CC&Rs can not conflict with federal laws. Therefore, if the issue is about an adult child moving back home with elderly parents, the Fair Housing Act does not allow you to discriminate based on familial status.

Mind you, I am not an attorney and I do not work in the legal profession. This is why I suggested that the Association may want to check with their attorney prior to proposing changes to the CC&Rs on this issue.

Hope this helps,

Tim

TimB4 (Tennessee)
Posts: 21,059

Posted:

Robert,

In an earlier thread, you gave the impression that the amendment to eliminate the age restriction had already been adopted by the membership. Additionally, you have stated that you are on the Board and, per another previous thread, you give the impression that those on the Board are considering challenging the vote of that amendment.

Based on this thread and your earlier threads, I would encourage the Board to seek legal advice on the issue.

I would also remind you that the Board has a duty to uphold any properly adopted amendment to the governing documents and should be spending Association funds in defending the amendment not challenging it. In my opinion, it would not be proper for those on the Board to use Association money to challenge a proper vote by the membership. If I were in your Association and the existing Board members spent money to challenge and overturn an amendment that was properly voted on and adopted by the membership, simply because they disagreed with the memberships vote, I would consider bringing legal action against each individual board member to recoup those funds for the Association.

If my conclusions are correct, or even in the ballpark, I again, I urge you to seek legal advice on the issue.

Tim

TimB4 (Tennessee)
Posts: 21,059

Posted:

forgot to mention that clicking on the blue words in my posts will take you to the documents or threads the words refer to.

JohnB26 (South Carolina)
Posts: 1,569

Posted:

TimB4;

from your link:

Significant Recent Changes
1.The Housing for Older Persons Act of 1995 (HOPA) makes several changes to the 55 and older exemption. Since the 1988 Amendments, the Fair Housing Act has exempted from its familial status provisions properties that satisfy the Act's 55 and older housing condition.

It is hard to believe, but, after researching the issue, it seems that 55+ communities ARE EXEMPT from the 'familial status provisions' !!!!!!!!

'They' will allow anything as long as us old fogies stay behind our gates and fences.

'They' have, in fact, gotten rid of 'us'.

We wished, and we were granted our wish ! Now we can die alone and in peace w/o bothering the young 'uns.

None of those pesky kids to be bothered by us ! No sirree !!

CAVEAT EMPTOR (including wishes)

JohnB26 (South Carolina)
Posts: 1,569

Posted:

from the same link:

Exemption: Housing for older persons is exempt from the prohibition against familial status discrimination if:
•The HUD Secretary has determined that it is specifically designed for and occupied by elderly persons under a Federal, State or local government program or
•It is occupied solely by persons who are 62 or older or
•It houses at least one person who is 55 or older in at least 80 percent of the occupied units, and adheres to a policy that demonstrates an intent to house persons who are 55 or older.

TimB4 (Tennessee)
Posts: 21,059

Posted:

John,

Thanks for pointing out my misunderstanding.
I won't make that mistake again in the future.

Tim

JohnB26 (South Carolina)
Posts: 1,569

Posted:

you are welcome

.....at first, I couldn't believe it either

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