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HOA after the fact?

Started by HeatherJ2 • 20 replies • 2793 views

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HeatherJ2 (Louisiana)
Posts: 7
Posted:
We bought our home in Louisiana on September 9th 2013 and at the time there was not an HOA and therefore nothing binding us to one. Now a neighbor has taken it upon herself to create, waive the council vote, and elected herself as the head of the HOA and her home as the principal office.
We live in a very small subdivision and it still being developed. I only found out because another neighbor came by today to have me sign something saying I did NOT want to be part of an HOA. They have only been able to collect signatures from about 30% of the home owners.
Also, this lady has set up a bank account for her HOA that only she can access.

Isn't this some kind of crime? How can this happen?
RayC4 (Virginia)
Posts: 173
Posted:
I don't know about a 'crime' but I agree that per your description this cannot stand (petition or not). A couple questions tho:

1) Is there any 'common space' or common elements within the development?

2) Does the developer know about this neighbor's 'agenda' and what does he say?

3) Where does your other neighbor intend to send her own (No HOA) petition?
TimB4 (Tennessee)
Posts: 21,062
Posted:
Quote:
Posted By HeatherJ2 on 06/07/2014 1:39 PM
We bought our home in Louisiana on September 9th 2013 and at the time there was not an HOA and therefore nothing binding us to one.

Heather,

Are you stating that you are not bound to an Association solely because one was not active when you purchased or are you basing it on a lack of deed restrictions (CC&Rs) attached to your property?

Only the lack of Deed restrictions or the language within any deed restrictions would be a reason that would stand up in a court of law.
HeatherJ2 (Louisiana)
Posts: 7
Posted:
I pulled out a copy of our contract. This is what it says;

30)Are there any applicable building restrictions or restrictive covenants which may provide for restrictions as to the use of the property or as to the type of construction or materials to be used in the construction of any structure on the property? check NO.

31)Has there been property damage related to the land or the improvements thereon, including, but not limited to, fire, windstorm, flood, hail, etc other proptery damage? checked - NO

skip down some

34) Are there any current or pending assessments, dues, lines, taxes owing on the property? checked - NO

35)Is membership in an HOA, COA OR POA required as a result of owning this property? checked - NO.

36)Are any HOA, COA OR POA dues required? checked- NO

Are there any pending special assessments? no

This last paragraph is at the bottom of these questions. This is a template contract so all have this part in them.
[Any information in this property disclosure regarding hoa is summary in nature. The covenants and association governing documents are a matter of public record and can be obtained from the conveyance records on file at the clerk of court in the parish where the property is located]

So from my contract I read that there is no hoa and nor am i bound to one in the future. Right?
HeatherJ2 (Louisiana)
Posts: 7
Posted:
Also to the first question - There isn't any shared spaces like parks or sidewalks or anything.

The neighbor who has the petition against the hoa is sending it to her lawyer.

I'm not sure if the developer knows or not.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Heather

I am not nor do I play a lawyer.

Based on what you have said, at best there is voluntary HOA which you do not have to pay dues to.

One thing I do not know is are there deed restrictions/bylaws that must be followed even in a voluntary association? Such as no purple houses, no junk cars, no chickens, etc. This is something you need to investigate.

JohnC46 (South Carolina)
Posts: 14,265
Posted:
Heather

Sorry no edit.

You mention the developer. Are they still in control of the development? If so, this adds a different twist.

LarryB13 (Arizona)
Posts: 4,099
Posted:
Heather,

The woman can form an association and call it whatever she wishes. She cannot force you to become a member without your consent. That consent normally would come from the purchase of property with restrictions or by you executing a document agreeing to become a member.

The questions and answers you posted above are fairly persuasive that there is no mandatory HOA but the final test will be your deed. If there are no conditions attached to the deed or if there is no language referring to recorded CC&R's then you can be confident that you have no HOA.

TimB4 (Tennessee)
Posts: 21,062
Posted:
Quote:
Posted By HeatherJ2 on 06/07/2014 4:52 PM

So from my contract I read that there is no hoa and nor am i bound to one in the future. Right?

Not necessarily.

The contract may have been created based on the best knowledge of the previous owner and the knowledge of the previous owner could be in error. A contract is not the deed. It may also have been that, since you said it's still being developed, that there is a provision that the developer may create an Association at some point in the future.

You need to go to the county courthouse or records department and have them pull a copy of your deed. Then ask them to check to see if there are deed restrictions attached to your deed or the PLAT (which is the design of the development).

If there are deed restrictions, ask for a copy.

If you don't have time to do this, ask an attorney or title office to do it for you.

Now, if there are restrictions attached to your deed and your contract says there isn't, you should consult with a local attorney to explore your legal options (if any). I am not an attorney and do not work in the legal profession. Perhaps, if restrictions do exist, you might be able to void the contract (which will mean that you have to give up the property and move) or you might be able to get financial compensation. Additionally, there may be a time frame that you can contest that contract and that time frame may or may not have passed.

Like I said, first obtain a copy of your deed from the courthouse and see what it says.
HeatherJ2 (Louisiana)
Posts: 7
Posted:
I'm not sure about the developer bc there were several here. I know that he mentioned to the lady that is starting this that he wanted her to start one.

I don't have a copy of the laws/covenant but my neighbor told me that at the very end of the covenant it says "A HOA will be formed". I told her that even though it "WILL" be formed, at the time we signed it "WASN'T" formed and therefore my buyers contract that states I there isn't an HOA wins. I also don't see how legally she feels she can just change the terms of someone elses contract. A contract is a binding legal document of sale that is intended to be enforced by law. She is being very ugly about things. That's okay. She went around and put flyers in our mailboxes knowing it was against the law. Her neighbor told her it was illegal and she said no one was going to say anything. I think she just screwed herself bc this has her name and info on it and my other neighbors said they were going to report her.
TimB4 (Tennessee)
Posts: 21,062
Posted:
Quote:
Posted By HeatherJ2 on 06/07/2014 6:11 PM

I'm not sure about the developer bc there were several here.

Developers and Builders may be two different things.

The Developer (on their own or as a group of investors) bought the land, developed the PLAT and got approvals from the city/county. The developer is also known as the Declarant.

A Builder might also be the Developer or they formed an agreement with the Developer to sell houses on the land the developer owned.

Quote:
Posted By HeatherJ2 on 06/07/2014 6:11 PM

I don't have a copy of the laws/covenant but my neighbor told me that at the very end of the covenant it says "A HOA will be formed".

Covenants and deed restrictions are the same thing. If there are covenants, then they would be attached to the deed as a deed restriction.

Quote:
Posted By HeatherJ2 on 06/07/2014 6:11 PM

I told her that even though it "WILL" be formed, at the time we signed it "WASN'T" formed and therefore my buyers contract that states there isn't an HOA wins.

As I said, I'm not an attorney, so you should seek a legal opinion on that belief.

To my understanding, if the Deed restrictions were attached to your property which allowed an HOA to be formed, then the individual is simply exercising those deed restrictions. Since the restrictions would have been attached to your deed prior to the purchase of the property, the deed restrictions (i.e. the covenants) would control (in other words, the covenants would win over your contract).

Quote:
Posted By HeatherJ2 on 06/07/2014 6:11 PM

I also don't see how legally she feels she can just change the terms of someone elses contract.

As I said, they would simply be executing a clause in a different contract you agreed to (the restrictions attached to the deed).

Quote:
Posted By HeatherJ2 on 06/07/2014 6:11 PM

A contract is a binding legal document of sale that is intended to be enforced by law.

Correct.

This is why I have encouraged you, and again do so, to go to the court house and get an actual copy of your deed and any and all restrictions attached to it. Those restrictions are also contracts that you agreed to and can be enforced by law.

Quote:
Posted By HeatherJ2 on 06/07/2014 6:11 PM

She is being very ugly about things.

Well, she might not have started out that way. However, if others are reacting the way you appear to be (based on your posts), she may have turned ugly. She could simply be the messenger.
As you previously posted, she was asked to do this by the developer.

Quote:
Posted By HeatherJ2 on 06/07/2014 6:11 PM

That's okay. She went around and put flyers in our mailboxes knowing it was against the law. Her neighbor told her it was illegal and she said no one was going to say anything. I think she just screwed herself bc this has her name and info on it and my other neighbors said they were going to report her.

Well, your neighbor may actually report her or may have simply been voicing an emotion.

If you are very concerned about the flyers being placed in the mailbox, you should report her to the postal inspectors. Of course, the report would then have your name on it in addition to (or instead of) your neighbors.

OR, you could simply politely contact the individual yourself and make sure that they are informed of the postal regulations and the potential consequences. Here is a link to
the postal regulatory commission which may assist you in your research.

Heather,

Again, I strongly urge you to go to the courthouse and find out if there are deed restrictions attached to your individual deed or the PLAT your deed came from. If there are, then obtain a copy of them. Once you have that information, you can do additional research and decide if you need to consult with an attorney for options or if the HOA can legally be formed and you are now a part of it.

The bottom line is, until you verify with the courthouse that there are no covenants in place that affect your property, you simply can't make an informed decision on what your next move should be.

I know that this likely isn't what you want to hear.
I hope it helps.
HeatherJ2 (Louisiana)
Posts: 7
Posted:
"A Builder might also be the Developer or they formed an agreement with the Developer to sell houses on the land the developer owned"

There were several developers and builders, 2 of them being brothers.

There is also an attorney involved now.

"Well, she might not have started out that way. However, if others are reacting the way you appear to be (based on your posts), she may have turned ugly. She could simply be the messenger.
As you previously posted, she was asked to do this by the developer."

I have not been ugly to this lady ever. We haven't even spoke about this issue. I
What IS ugly is that she waived the first meeting early this year, nominated and voted herself as he "president" of the HOA she is trying to organize. Her 2 friends who live here nominated and voted themself as treasure and record keeper. If it is something that we have to be a part of then we should have had some say-so with the voting.

I appreciate your help with this issue.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Heather

Simply get a copy of the Covenants/Deed Restrictions that are attached to your deed. Read and understand them versus try and put your interpretation on the way things are and/or should be.

PitA1
Posts: 222
Posted:
.... The covenants and association governing documents are a matter of public record and can be obtained from the conveyance records on file at the clerk of court in the parish where the property is located.


I would check your actual deed AND at the parish register of deeds ASAP !

you may or may not have recourse against the seller if necessary
JoK2 (California)
Posts: 198
Posted:
As suggested go find the deeds at the courthouse, and an FYI, the name for which it was recorded at the courthouse may make it harder to find such deeds if they do exist. Our HOA has seven different "names" for seven different documents that were filed, all of varying sorts of orginal.

The last attorney we went to said she only found one of them. So just because you can't find them, doesnt mean they don't exist in some other name. Crazy I know but I found them myself. (The attorney wasn't sure to believe me or not, I mean after all, how could a non attorney find more than she? But I did catch her looking sideways at what I had written down)

It would stink of there is to be some HOA and you were not informed. Wouldn't your title company or closing company be able to tell you? Isn't that part of their job to make sure? I would think so, but I'm not a professional in that industry.
DouglasK1 (Florida)
Posts: 2,046
Posted:
Quote:

I don't have a copy of the laws/covenant but my neighbor told me that at the very end of the covenant it says "A HOA will be formed". I told her that even though it "WILL" be formed, at the time we signed it "WASN'T" formed and therefore my buyers contract that states I there isn't an HOA wins. I also don't see how legally she feels she can just change the terms of someone elses contract. A contract is a binding legal document of sale that is intended to be enforced by law. She is being very ugly about things.

Your contract is nothing but a agreement between you (buyer) and the seller to transfer whatever ownership the seller has to you for some consideration. Any parties that did not sign the contract are not bound by it. In the contract, the seller made certain representations about the existence of an HOA, these are probably truthful to the best of the seller's knowledge, but if those representations are incorrect, your recourse is with the seller. Did you buy from the builder or was it a resale?

As other posters have told you, you need to find out if there are any deed restrictions/convenants/etc. recorded for your property. If there are, you are bound by them no matter what representations the seller made to you. Even if there are, that doesn't necessarily mean that you have to be an HOA member, it depends on what the documents say. Those deed restrictions would also be a contract that is binding on you and that precedes and overrides any conflicting verbiage in your sales contract.

Did you retain an attorney when you bought the house? If not, did you get an owners title insurance policy? If yes to either of those, those parties should have been looking out for your interests and discovered and notified you of any deed restrictions. You might have some recourse with the attorney or title company if they didn't discover and disclose this info.

In any case, without knowing if your property is subject to deed restrictions, you (and the rest of us) are just guessing. You need to determine if they do or don't exist, and if they do, you need to read and understand them.
Escaped former treasurer and director of a self managed association.
PitA1
Posts: 222
Posted:
DITTO

WELL STATED
HeatherJ2 (Louisiana)
Posts: 7
Posted:
I got a copy of the covenant.
It was created in 2006 and as far as an HOA it says the following;
"Appearers declare that a homeowners association will be formed to provide for and maintain certain amenities to enhance the subdivisiob. The members of the association will be all the owners of property in The Hedges. Assessment rights and other details of the operation of the homeowners association shall be provided in the Articles of Incorporation to be filed in the records of Ouachita Parish."

There wasn't an HOA filed until last month. Isn't there a difference between "will be formed" and "is formed" ?

At the time of signing there wasn't one like my buyer contract says. Also, the properties for sale in the neighbor hood say on the real estate page that "A homeowners association is being formed."

What do ya'll think?

Trust me, I am NOT being ugly in anyway. I actually walked down to her house yesterday and asked her for a copy of the covenant because we had never received one. I was polite and even was petting her dog. I am not a rude person by nature at all. I know some stuff I have posted can sound rude or ugly, but I am upset. We have a petition also going around to the 48 homeowners and so far 21 have signed that they don't want an HOA.
TimB4 (Tennessee)
Posts: 21,062
Posted:
Quote:
Posted By HeatherJ2 on 06/09/2014 1:33 PM

There wasn't an HOA filed until last month. Isn't there a difference between "will be formed" and "is formed" ?

Yes.

Will be formed indicates sometime in the future the Association will come into existence.
Formed indicates that the Association now exists.

Since the Covenants were written in 2006 - it looks the future is now the present.

Quote:
Posted By HeatherJ2 on 06/09/2014 1:33 PM

At the time of signing there wasn't one like my buyer contract says. Also, the properties for sale in the neighbor hood say on the real estate page that "A homeowners association is being formed."

And the future is now - so it is formed or in the process of forming.

Quote:
Posted By HeatherJ2 on 06/09/2014 1:33 PM

Trust me, I am NOT being ugly in anyway. I actually walked down to her house yesterday and asked her for a copy of the covenant because we had never received one.

OH, so you still don't know if those Covenants are the ones attached to your deed or not.

As your finding out, and it's tough love time, it's ok to trust what people are telling you but when it's something important (like your house) you need to take the time to independently verify what you were told.
HeatherJ2 (Louisiana)
Posts: 7
Posted:
I know I sound ignorant but how to I find this out about what's attached to the deed?
TimB4 (Tennessee)
Posts: 21,062
Posted:
Quote:
Posted By HeatherJ2 on 06/09/2014 2:16 PM
I know I sound ignorant but how to I find this out about what's attached to the deed?

From earlier posts on this thread:

Quote:
Posted By TimB4 on 06/07/2014 6:04 PM

You need to go to the county courthouse or records department and have them pull a copy of your deed. Then ask them to check to see if there are deed restrictions attached to your deed or the PLAT (which is the design of the development).

If there are deed restrictions, ask for a copy.

If you don't have time to do this, ask an attorney or title office to do it for you.

Quote:
Posted By PitA1 on 06/08/2014 5:28 AM

I would check your actual deed AND at the parish register of deeds ASAP !

Quote:
Posted By JoK2 on 06/08/2014 6:11 AM
As suggested go find the deeds at the courthouse, and an FYI, the name for which it was recorded at the courthouse may make it harder to find such deeds if they do exist.

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