What language to terminate CC&R altogether?

1. Get yourself a lawyer.

2. Make sure there are no issues with the banks (mortgage holders may need to approve) or the city (may need to agree to take over common area).

As others have said, you will need the advice of an attorney.

In order to terminate the CC&Rs, you need to make sure of the following:

Are services being provided by the Association (trash, paying electric for street lights, maintenance on common areas, etc.)? If services are being provided, a plan must be in place to eliminate those services and have them maintained by someone else (special tax district, direct bill, sell common area to owners, etc).

Are the streets private or public? If private, you may not be able to fully eliminate the CC&Rs without the replacing them with a private road agreement. Most Counties and Cities do not want to take on the expense of additional roads and therefore will refuse to take control of them. However, it can't hurt to check into it.

Are there playgrounds? Will the areas be sold or donated to the city as a public park? Keep in mind that public parks can increase traffic, noise, etc. as the public enjoys the park.

What about sidewalks? Is the Association maintaining sidewalks (at least on the common areas)? Plans need to be put in place to have someone take responsibility for them, perhaps the city with a special tax district.

You may simply want to amend the CC&Rs to remove specific restrictions and/or limit the authority of the Association without actually eliminating the CC&Rs.

I forgot to mention, we have no HOA.

no common areas either. No shared maintenance.

These were ancient cc&rs that no one bothered to get rid of.

How about:

"We, the owners of more than 51% of the houses in (community) as of (date), hereby terminate ..."

JoeM,

A few questions, to provide context:

Approximately how many current Owners? And the approximate year built?

Would you be willing to post the words from you CC&Rs that state, as you wrote, there must be a 51% majority vote to terminate the CC&Rs.

You wrote that you have no HOA. Was there ever an active HOA?

Do you have any other Documents besides the CC&Rs?

Is there a specific reason you want to do this now? Many Associations have “old” ancient documents, written years ago, but still in use.

Or are you perhaps asking about re-writing and re-stating your CC&Rs and then recording the re-written Document, so that it becomes the current CC&Rs.?

As others have asked – are you sure you can do, what you want to do?

Does the Deed to your property make any reference, in any way, to any Documents such as the CC&Rs?

I personally find it hard to believe that CC&Rs can be terminated with a mere 51% of a vote but who knows. Since the OP is from CA then more than likely the Davis-Stirling rules for holding a vote would apply. IMHO even if the CC&R's are removed the deed restrictions would still be valid and would more than likely require 100% of homeowners voting yes to remove them. This makes Tim's advice to contact an attorney to make sure everything is done properly and legally imperative.

Larry with all due respect say you and I live in the same HOA along with 98 other owners, I don't believe you and 50 others can vote to remove the deed restrictions from my property.

Now I'm not an attorney and my only going by what I read on the interweb (marginal at best) and every state has different laws but according to EHow.com

How to Remove Deed Restrictions:

CC&Rs appear benign. Not sure why they would affect ability to sell. Showing up on title search is not a big thing - Unless you need to produce documentation for a prospective buyer. But that's easy enough to put together.

Apparently there is no common area to maintain, so a buyer would not expect fees.

The particular restrictions described in your CC&Rs could actually help property values.

I'm seeing some possible downside and minimal upside in getting rid of the CC&Rs.

Suggestion: Amend the offensive clauses, but don't discard the entire CC&Rs.

You live in California then could the one story requirement be because of the terrain? I am asking as we had some people (ex-mayor now) who found some land on a "mountain". It is beautiful land. However, it was found to be extremely dangerous to build on due to possible landslides. It was very prone to them and deemed as such by the government. It was not zoned for building on.

Well, these people insisted and went to the city to have the property rezoned to allow homes to be built. They won and preceded to build these huge "McMansions" on the hillside. Fast forward a few years and guess what? There was a landslide taking out the road and endangering the homes. Who did they want to foot the bill? The city? Our tax money had to go pay for the repairs and home issues of people who were told NOT to build there in the first place.

This makes me wonder with you being in California that these restrictions are because of the earthquakes or other terrain issues? Getting rid of these restrictions would someone be able to move a trailer into the neighborhood? Sometimes restrictions are good despite us liking them or not. I would not like if someone moved in a "double wide" trailer into my neighborhood. No restrictions that could happen. Hence why banks like restrictions too. It's their investment and risk too.

You must be kidding!

Do you really think that there is some sooper seekrit unrecorded agreement made in 1956 between the developer and the city that would somehow be binding on the homeowners six decades later?

My now ex moved into a neighborhood with no HOA but restrictions. I understand from my older neighbors we also have restrictions. Basically we can not put a double wide or single wide home on the lots. They have to homes without having wheels on them. That is why trailer parks exists.

You have to look at this from another perspective. The banks... They take on the most risk as most people have mortgages on their homes. Mobile homes are assessed differently and not comparible to bricks and morter. Which not having certain restrictions written in, means an outhouse to a McMansion can be built.

You can buy a home for a million dollars but does not make it worth it. Especially if the other homes around it are 100K 1K foot homes. The footprint of the homes matter. Home value is based on square footage and homes that are similar sold for in a few mile radius. Foreclosures play a part too. So a 5K square foot house built in a neighborhood of 1K square foot homes just shoots itself in the foot. Restrictions are there for a reason and sometimes to protect ourselves.

I have a neighbor who remodelled their home up the road. It has beautiful tile works, big cabinents, and nice quality materials. They want to sell it at 175K. The other homes in the neighborhood are only listed or sold for100K plus or minus a few grand. They are similar in size and bedrooms. Do you think our home values went up? No. Most likely no bank will ever approve this loan for the amount he wants. Which shows that home values are not based on desires and materials. It is based on real numbers.

heheh. sorry for leaving out details. It gets interesting.

this is not hillside. land is pretty flat.

neighbor already built 2-story house with the approval of the city 25 years ago. The city also made him get signature approval from his surrounding neighbors to build. They were all ok with it because no one knew this cc&r existed.

Unless the agreement was somehow recorded as a deed restriction against the real estate it is not binding on subsequent purchasers. It could be incorporated into the CC&R's by directly quoting the language of the agreement or it could be incorporated by referencing another recorded document. I know of no legal way to bind third parties to agreements without their knowledge and consent. It is not a question of the age of the agreement; the issue is that agreements among two parties are not agreements among other parties without some explicit acceptance by those other parties.

In the OP's case, he has posted the entire text of his CC&R's and it clearly states that a majority of homeowners may terminate the restrictions. I fail to see where there should be an issue with homeowners exercising the rights explicitly granted to them.

I also see no need to read through 70 years of city council and zoning board minutes in the off-chance that there is mention of an unrecorded agreement. No title company would waste its time doing that. But suppose you do find minutes indicating there was an agreement that, say, all the homes would be painted pink with lavender trim. There is no language in the deed restrictions requiring the homeowners to keep that paint scheme so it is not enforceable against the subsequent owners.

Minutes by themselves would not be an enforceable contract, either. They only show that the agency agreed to certain terms but are not evidence that the developer also agreed. For that you need the signed contract. Then you would somehow have to establish that the contract is binding on subsequent owners even though there is no record of it in their deed restrictions.

Whether current zoning ordinances prohibit two-story homes (or any other potential changes) is not pertinent to whether the homeowners may terminate their deed restrictions. There is nothing in terminating the CC&R's that would require a homeowner to make alterations to his property. If his home is legal now it will continue to be legal after the deed restrictions have been terminated.

Too many of you on this forum are like my own board. We have a problem and we find a reasonable solution. Then at the last minute someone gets cold feet about acting and creates a fictional obstacle. Things like, the light bulb in the bathroom is burned out but we cannot replace it without getting bids from three licensed electricians. In this case, the OP is on the right track to terminate obsolete CC&R's, yet the majority of responses are suggesting that the OP and his neighbors cannot do what they have a right to do because maybe sometime 60 years ago someone did something in secret to prevent them from acting. The only good thing I have say about this is thank God you are spending your energies on your HOA's and not screwing up important things.

I have already consulted several attorneys, and none of them, with their decades of experience, brought up an issue with mortgage companies..... and they would be the first to know if that was a complication.

They advised me to go ahead and conduct a meeting with the owners and vote and have it recorded.
Since this is not an HOA, Davis-Stirling laws do not have to be followed, though it doesn't hurt to follow them.

Some suggested to me once is to get all the lot owners and file a quite claim deed on each lot after consulting with a lawyer to remove the CC&R since their is No HOA. there is a deed restriction that just refers to the developer buying the plots of lands for our section but no mention of a HOA is in anything nor anyone else's the CC&R came after that recording. So why file something against that's there is no record of it except a CC&R that's only recorded. we all agreed to not fix something that's not broken. we just let that HOA waste their money every time their property management change comes about.

I was not suggesting that the mortgagee would have some kind of veto or anti-termination power.

But mortgagees may have the right to be notified. And if they are not properly notified, the recorded change could be legally challenged later for failure to notify.

Please note that when a document is recorded it is notice to all the world EXCEPT those whose documents are already recorded. Those whose documents are already recorded (including mortgagees) would need to be notified individually.

I do agree that the troublesome language is likely to be found in the mortgage document. It could also be found in the loan document which is often not recorded at all. Restrictions can also be found in the riders you mentioned.

My point was that failing to notify lenders is a potential pitfall. Beyond that, I would recommend speaking with a lawyer. This is not an area that people should attempt to deal with on their own.

Hi James.
You seem to be saying that the roads into your community were owned by the city prior to the second development. But these roads were transferred from the city to the developer when the second community was built. Is this correct?

We are getting the signatures notarized, so there will be no doubt as to the identity of the signer.

I doubt very much that the advice came from an attorney. A quit-claim deed has no effect on deed restrictions; it merely says that you surrender your interest in the real estate to someone else.

NpS,

You seem to be under the delusion that the "first filer" was the mortgage company. In fact, the first filer was the declarant who recorded the declaration. Under the terms of the declaration, it could be terminated by a majority vote of the property owners. Therefore, the mortgage companies had notice that the owners may at some future date terminate the declaration without notice to anyone and they are not entitled to notice now; if they did not like those terms they should not have made the loans.

The OP did not raise the issue of a quit-claim deed; that was raised by another person.