A service of:
Community123.com
Professional websites for HOAs & condos, since 2004
🎁 1st year FREE for HOATalk members! →
← Return to Topics List

Notice of Annual meeting

Started by EmmaH1 • 47 replies • 1939 views

💬 Join us to post & get advice from 50,000 HOA & Condo leaders.

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in

EmmaH1
Posts: 674
Posted:
Is the board required to notify all members of the annual meeting even if they are considered "members in good standing"? They say they can choose not to notify. I was under the impression that all members must be notified (although I realize the board can suspend voting rights). I'm in SC.
Thanks
EmmaH1
Posts: 674
Posted:
sorry I meant considered "members NOT in good standing"
TimB4 (Tennessee)
Posts: 21,059
Posted:
In my opinion, yes. You might not be allowed to vote, but you should be allowed to attend a general membership meeting regardless if you are delinquent in your assessment payments.

As for being required to notify, and I have not checked the applicable SC laws (condo and/or corporate), typically the requirement is to notify the membership. I've never seen a statute that says notify only members in good standing.

Check your governing docs to see what the language is for notification of meetings. Then check the applicable statute.

Note: If the individual is you, if you now know of the meeting, regardless of how you found out, you can't say that you were unaware of the meeting (unless you found out after the fact).

EmmaH1
Posts: 674
Posted:
We have a messy ongoing complicated legal situation, not yet fully resolved (not sure if you remember me Tim, but you did answer my previous post) We are in the currently in the process of hopefully reaching a mutual agreement with a the board on our situation. (The previous president and secretary were just voted out at the meeting 2 days ago-----so hopefully the next ones will be reasonable).

That being said. The board sent out notice of the annual meeting to me and all other owners except for one owner. They also are in the middle of a ongoing dispute with the HOA (they are considered by the board to be "members not in good standing"). When that owner sent an email to the secretary asking that he be sent same information that all the other homeowners received 10 days before the meeting ( including prior meeting minutes, upcoming agenda for this meeting, and most importantly a completely new proposed amended Declaration of Restrictions to replace the original ones to be looked over before the meeting.) The response that this homeowner received from the President was an email stating that "The board has the power to decide who receives notification of meetings and who does not". (I don't think this sounds right and told that homeowner to hold on to that email as proof). It just does not seem fair, I know this does not involve me personally but I hate to see other people treated unfairly or taken advantage of.

Thank again
TimB4 (Tennessee)
Posts: 21,059
Posted:
When amending the Declaration (CC&Rs) I'm not positive you can exclude members from voting. Even if you can, it's simply isn't practical. Typically, an Association needs 2/3 or more approval from the membership (not from members voting or of the votes cast). Therefore, in an Association that has a high number of members who have had voting privileges suspended, it could be possible (granted in the extreme) to actually prevent the amendment from passing.

If the amendment does pass, this one member who was not properly notified could challenge the legality of the amendment. If they won, the Association would have to go through the process to amend again but, this time, ensuring that procedures are fully complied with.

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

Our SC Bylaws say

Notice of Meetings: Written or printed notice stating the place, day...etc...shall be delivered...etc...to each Voting Member entitled to vote at such meeting not less the 10 nor more the 50 days...etc...

I suppose the entitled to vote could mean if one was not entitled to vote then they do not have to be notified.

I believe our docs say those behind on dues and/or involved in any legal action with the HOA are not entitled to vote.

SheliaH (Indiana)
Posts: 6,964
Posted:
As others have said, check your documents. I suspect they're written as you said - all members must be notified of the meeting, although voting rights might be suspended if the member is delinquent.

That's how our Bylaws are written and when we have the annual meeting, our property manager brings a list of people who are current with assessments, so we can check them off for attendance (if you're not listed, you can stay and listen, even speak up during the resident forum, but you can't vote.)
If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
EmmaH1
Posts: 674
Posted:
So John,
Since you are in Lexington, SC like me, I am interested to hear your opinion. You are saying that it would be allowed here in SC for an Original Declaration of Restrictions/Contract to be completely altered/replaced with more restrictive covenants added and other sections of the original completely omitted. Then voted on and approved as a replacement the original governing documents binding all owners to it. You believe all of this could be done without even giving notice to all members to even attend or read the proposed changes? and you feel these changes would be enforceable, valid and legal? without all being notified and allowed to at least attend?
EmmaH1
Posts: 674
Posted:
Governing documents are silent on the subject of voting rights when amendment changes are being considered (unfortunately). So how do you all think these assumptions that the board is making would hold up to scrutiny if validity is questioned? (We have had a board in place that seems to feel that they are above the law). I know you all can't give legal advice but when I do go to consult my attorney I like to bring him lots of research (it keeps the bill lower).

Thanks
JohnB26 (South Carolina)
Posts: 1,001
Posted:
Not an attorney, but somewhat of an expert on SC corporate law re: HOAs.

ALL members of a not-for-profit corporation MUST be notified of the annual meeting - PERIOD !

The By-laws may, or may not, specify voting privileges re: unpaid assessments.

HOWEVER

There are TWO types of vote:

CCR issues : ALL members may vote whether in good standing or not (CCR amendment)

and

Corporate issues : voting specified by By-laws (directors, budget, by-law amendment)

REMEMBER:

ALL MEMBERS MUST BE NOTIFIED OF THE MEETING AND MAY ATTEND

Voting may, or may not, be disallowed for arrears DEPENDING ON THE NATURE OF THE VOTE

EmmaH1
Posts: 674
Posted:
Thank you John, very helpful I appreciate it.
JohnB26 (South Carolina)
Posts: 1,001
Posted:
welcome

remember, if the (special) meeting being 'called' is for a purely corporate issue, then, if the by-laws permit, the 'members not in good standing' need not be notified as they may (if the by-laws so state) not be eligible to vote anyway

EVERYONE gets notified for the annual meeting

EVERYONE votes on CCR issues

the by-laws may limit voting on corporate issues to members in good standing

voila ~ no more confusion

ps. should the existing BOD refuse to comply you have two choices:

seek an injunction

or

(expensive) petition for a receiver
BobD4 (up north)
Posts: 1,002
Posted:
An issue is whether whacko threats & misstatements by a Board member, even the President, have ever been made at all, and if so can do much actionable damage unless actually carried out. If the email was genuine it would show a huge contempt for the law.

As opposed to less than formal HOAs without a state HOA law nor NFP not for profit specialized laws, condo laws might be legislated to deny a vote or to allow a voluntary assignment to a mortgagee/chargee/ proxy recipient, or to action a court order eg partition or matrimonial law order.

But how can any organization with impunity deny access to common areas or meeting venues wherever? Did it even do so ? Sounds fishy or some medical condition ? insulin rush ?
JohnB26 (South Carolina)
Posts: 1,001
Posted:
If y'all are a condominium then the South Carolina "Horizontal Property Act" will apply IN ADDITION to corporate law.

http://www.lawserver.com/law/state/south-carolina/sc-code/south_carolina_code_title_27_chapter_31
EmmaH1
Posts: 674
Posted:
The email was not only sent has now even been mailed out letter form as of this morning. (This email was also sent out across the board to the entire membership!) The threats are made and documented. (I haven't brought them to the attention of our attorney yet, but were calling to make an appt. today.)

It's so crazy it is almost unbelievable I agree. We just keep documentation of everything.

We are single all family homes so the horizontal act does not apply to us. The non-profit does.

***My husband and myself are shocked at the actions of this board and the fact that some other owners don't even investigate or educate themselves of any legalities before they vote on actions that could affect their property rights for the future. Some people are easily swayed, manipulated or are just so trusting that they sign their rights away without even one question.
EmmaH1
Posts: 674
Posted:
Bob your from up North, like I'm originally from. In South Carolina there are no specific law to govern HOA's in single family neighborhoods. It goes back to basic contract law, and non-profit if incorporated. South Carolina hase tried for sometime to pass a Homeowners Act but the CAI Attorneys are huge lobbyist against the passing of that law. (I feel some unethical HOA attorneys use these "conflicts" as a income, turning neighborhoods into "cash cows" for themselves. It would not behoove them to have some simple laws in place to resolve conflict without expensive litigation.)
EmmaH1
Posts: 674
Posted:
Actually they are not "threats anymore", they did vote and they did not allow that member to vote on the new amended CC&R's! they plan to record it at the register of deeds now. (They're attitude is basically we can do what we want if you don't like it then start litigation, they rely on the fact that no one wants to spend the money so they will just not do anything.)

additionally many people are just so disgusted with the situation they just did not show up at the meeting, I think that was a mistake for sure on their part. Because they did not vote or send a proxy, so they went ahead and took a vote since of course they were in majority under those circumstances.)
EmmaH1
Posts: 674
Posted:
Actually they are not "threats anymore", they did vote and they did not allow that member to vote on the new amended CC&R's! they plan to record it at the register of deeds now. (They're attitude is basically we can do what we want if you don't like it then start litigation, they rely on the fact that no one wants to spend the money so they will just not do anything.)

additionally many people are just so disgusted with the situation they just did not show up at the meeting, I think that was a mistake for sure on their part. Because they did not vote or send a proxy, so they went ahead and took a vote since of course they were in majority under those circumstances.)
EmmaH1
Posts: 674
Posted:
Actually they are not "threats anymore", they did vote and they did not allow that member to vote on the new amended CC&R's! they plan to record it at the register of deeds now. (They're attitude is basically we can do what we want if you don't like it then start litigation, they rely on the fact that no one wants to spend the money so they will just not do anything.)

additionally many people are just so disgusted with the situation they just did not show up at the meeting, I think that was a mistake for sure on their part. Because they did not vote or send a proxy, so they went ahead and took a vote since of course they were in majority under those circumstances.)
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Quote:
Posted By EmmaH1 on 11/19/2014 6:59 AM
So John,
Since you are in Lexington, SC like me, I am interested to hear your opinion. You are saying that it would be allowed here in SC for an Original Declaration of Restrictions/Contract to be completely altered/replaced with more restrictive covenants added and other sections of the original completely omitted. Then voted on and approved as a replacement the original governing documents binding all owners to it?

YES, see below

You believe all of this could be done without even giving notice to all members to even attend or read the proposed changes? and you feel these changes would be enforceable, valid and legal? without all being notified and allowed to at least attend?

I believe all owners must be notified and can attend. I believe not all may be eligible to vote as per ones docs.

Emma

Covenants/Bylaws are not all the same in SC or for that matter, anywhere. Thus mine could be quite different then yours even in SC.

Covenants and Bylaws can be changed. As to how to do such is usually detailed in the Covenants/Bylaws themselves.

Typically Covenants are the hardest to change in that they generally require the largest majority of all owners (often 90%) agreeing to change. In an HOA of 200, it might take 180 agreeing (yes, all agreeing, not just voting) to said changes. Almost an impossible number to achieve.

Bylaw changes can be easier as typically they will require simply a Quorum of owners voting. In some cases a Quorum can be as low as 25% of owners. In an HOA of 200 the 25% Quorum would be 50 owners voting and if 26 of those 50 voting agree, the change happens. Thus 26 out of 200 made it happen.

Also there are Association Rules and Regulations (R&R's) a BOD themselves can make and/or change. R&R's do not require owner approval. Generally if a BOD refuses to change R&R's or make some people do not like, the only way to get these changed is to recall/vote out some or all of the BOD and get a BOD in that will make changes. One way many BOD's get in trouble is to make R&R's that override Covenants and/or Bylaws, and in many cases actual laws. R&R's are not allowed to do such.

One other area of confusion is when an HOA is under Declarant control. Basically the Declarant calls all the shots no matter what the owners want. It is usually set up for him to control by having more votes then the owners and in many cases right up until he sells the last unit. We are undergoing transfer from Declarant to owner control effective 01/01/2015. It is an amicable transfer and our Advisory BOD has made several suggestions of Bylaw changes we wish the Declarant to make prior to the transition.

A few points about SC. There are state rules and regulations covering multi unit high rise (two stories or more) condo buildings. It is The SC Horizontal Property Act. There are no such rules and regulations cover other type Home Owners Associations such as single homes, duplexes, townhouses, etc.

Overall SC leans in favor of business, corporations, BOD's etc. versus the individual person. The SC Articles Of Incorporation is riddled with saying so and so then followed by unless your Bylaws say otherwise thus tossing it right back to the Corporation Bylaws. One example is Proxies are allowed is SC but ones Bylaws could say they are not allowed. This is one Bylaw our Declarant is changing as our present Bylaws say Proxies are not allowed.

Hope this helps.

JohnC46 (South Carolina)
Posts: 14,265
Posted:
OOPS on the bold type.
JohnB26 (South Carolina)
Posts: 1,001
Posted:
It usually requires a 2/3 AFFIRMATIVE vote of the ENTIRE membership NOT a majority of a quorum to amend CCRs.

The procedure for amending the CCRs will be within the CCRs themselves NOT the By-laws.

eg.

my HOA = 126 homes

2/3 affirmative required (signed) = 84

therefor 84 AYE votes must be obtained to amend regardless of # actually at meeting

(a non vote for whatever reason is considered a NAY)

how to amend by-laws will be contained in the by-laws which 'generally' say: a majority of a quorum

DO NOT CONFUSE CCRs with BY-LAWS
JohnB26 (South Carolina)
Posts: 1,001
Posted:
crossed with JohnC

~ again ~
EmmaH1
Posts: 674
Posted:
Thank you John & John, I just realized there are 2 of you both from SC. Wow these issue have so many different aspects and areas of law involved. That is why I rely on this site to try and get my thoughts in order------to ask all these questions to an attorney would take so much time it would cost a fortune (I might as well just sell my house right now, lol.)

Thanks for your responses and they do help (a lot) and I owe you for it! It sounds like we are correct in believing that things are not being done in a correct manner.

Our objective it not to fight with them constantly but just not have them believe that they have an unlimited scope of power over other people individual property and know that people must be treated fairly and within legal limits. (they "consult" with an attorney that has a reputation for bullying homeowners because he seem to rely on the fact that people don't take or have the time to investigate laws or the money to bring action into the courtroom. Although I don't think this last action they even bothered to consult him about!)

JohnB26 (South Carolina)
Posts: 1,001
Posted:
CAVEAT EMPTOR
EmmaH1
Posts: 674
Posted:
What if none of our documents mention what a non vote counts as? do they have to count them as a Nay? They did not count the non votes as a nay at that the last meeting. (If they did then they would not have had even a 2/3 vote to amend the CC&R's.)

Now as far as needing not just votes but agreement to---- in order to change the actual CC&R's is this found in SC Non Profit Act? ( I just got home and will be pulling it up on line to read through very thoroughly again. )

There were no Articles of Incorporation or Bylaws created when we purchased our home. They created them after our purchase. So we did not have the option of inspecting anything more than the CC&R's since they were all that existed anywhere. (They did not followed the cc&r's when creating the bylaws) I thought the Bylaws were supposed to go along with the CC&R's. I didn't think you could change the CC&Rs to go along with a newly created set of Bylaws. It seem backwards and maybe not even allowable. In my opinion, the CC&R's are the original "contract" in place when we bought our home, so how can they can now be retroactively changed? so radically? even with a vote?

In fact they have not yet created any "Rules and Regulations" at all. Although the amendment to the CC&R's they just "supposedly" added Introduces fines for breaking the Rules and Regulations into the mix, despite the fact they don't even exist yet. (In fact The CC&R's do not mention an ability or intent to allow for fines nor is their a fining policy proposed, I guess that fines will be put in place at their discretion? Well, I guess that's a subject for another day).

Everything seems to be being done in such a crazy way in this HOA. They seem to be inventing not only the "rules of the game" but also the actual "process" as they go along and tailored to personal desires. It is very frustrating. They do not provide answers to question asked. It's kind of scary, other neighbors are too timid or afraid to even question them for fear of retaliation.
EmmaH1
Posts: 674
Posted:
Would the South Carolina non-profit Act be considered the "Articles of Incorporation"? are they the same thing? they never distributed any Article of Incorporation paperwork specific to our community so I assume that the non-profit law would be our articles? am I correct?
BobD4 (up north)
Posts: 1,002
Posted:
Emma : Which part of "up north" ? Bet you sometimes wish you were back up in the land of the Great Igloo. Excellent S Carolina commenters can answer the questions better than me.

A specific set of "Articles of Incorporation" is not a form of legislation like Ch 31 The Nonprofit Corporation Act within S Carolina's Code of Laws Title 33 ( Corporations, Partnerships and Associations )
http://www.scstatehouse.gov/code/t33c031.php

An issued Incorporation document gives a group of applicant individuals the merged status of a "person" with degrees of legal capacity lacking without such. The capacity could include to sue /be sued / own property acquired from the applicants by separate transfer document or some form of separate legal process.

It does not all by itself transfer ownership of real property. I and 9 others may sit down in the foodcourt of Grand Central Station and file for articles online that we claim make us the owners of the complex. But that claim is crap.

It would not be crap however if there is put in place a "vires" or legitimate ownership or governance granting mechanism running validly with land titles. If you and others acquired land titles encumbered with a contracted exposure to a HOA already created or lawfully formula'd to be so created, then there could arise a HOA or something with vires or legitimate governance power.

As you say, this is "contracts" possibly encumbering ongoing title and running with land ie cross-contracted benefits & burdens ( or as they say in the old country Elliston v Reacher 1908 & Reid v Bickerstaff 1909 and 13 others). Come back up north, cold as ice but less oppression.
EmmaH1
Posts: 674
Posted:
I'm from Massachusetts, and It was my idea to move down my family here to get away from those long winters. It was basically a good decision with the exception of "THIS". I can't believe how people will sign away there legal rights and allow possible permanent changes to be made to their property (and lifestyle) without even questioning or understanding it completely ("the devil is in the details"). I'm not sure that it's a Northern or Southern thing but I'm sure some of my neighbors wish these "Damn Yankees" would move back north (lol) and I'm SURE they are sick of hearing my Boston accent at meetings by now (lol).
BobD4 (up north)
Posts: 1,002
Posted:
not quite as far north as me. . . If your Massachusetts forbears hadn't tossed George III & his tea into the harbour, your South Carolina HOA might today have been kept weak by Austerberry v Oldham 1885 (HOA friendly affirmative obligation type promises to "pay/comply/pass along", don't bind transferees unless they make an express promise to accept such. Sorry )
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Quote:
Posted By EmmaH1 on 11/19/2014 4:59 PM
I'm from Massachusetts, and It was my idea to move down my family here to get away from those long winters. It was basically a good decision with the exception of "THIS". I can't believe how people will sign away there legal rights and allow possible permanent changes to be made to their property (and lifestyle) without even questioning or understanding it completely ("the devil is in the details"). I'm not sure that it's a Northern or Southern thing but I'm sure some of my neighbors wish these "Damn Yankees" would move back north (lol) and I'm SURE they are sick of hearing my Boston accent at meetings by now (lol).

Emma

I also moved from MA (Andover) to SC. I am in my 2nd HOA in SC and I loved living in each one. I also lived in an HOA in MA plus in OH and IL. I love HOA living especially being able to control what neighbors can and cannot do. It is a great tool for maintaining a high standard of living versus see the neighborhood deteriorate.

HOA's can be frustrating, but it is possible to seize control away from any one group.

JohnB26 (South Carolina)
Posts: 1,001
Posted:
Hierarchy of documents:

Federal / State / Local laws

Covenants and Restrictions ~ contractual restrictions recorded against the property itself

Articles of Incorporation ~ basis of incorporated HOA (if incorporated), however, the HOA will exist whether incorporated or not - said existence will be referenced in the covenants and restrictions

By-Laws - operation of said corporation, if not incorporated then no by-laws

Rules and Regulations ~ resolutions passed by the Board of Directors governing any 'common elements' or even things such as house color viewable from the common elements, they MUST have a basis in the Covenants and Restrictions

ps. you are only a 'damn' Yankee if you take a job, else you are merely a 'darn' Yankee
EmmaH1
Posts: 674
Posted:
I completely get what you guys are saying and I get the "tough love/luck" you signed up for it when you purchased here. In fact as soon as we can build enough equity to leave our "dream" home in the "nice" neighborhood we thought we were buying into we will be looking for another home nearby. (There are actually a lot of nice HOA neighborhoods with lots of amenities that you receive along with rules imposed that actually do help uphold property values.)

Our problem is that we purchased into a unique very small community with only a pond and a pretty entrance sign/with a water feature, relaxed not overly strict restrictions in place. Neighborhood was and still is not built out. Now this small group in power is trying to "change the character of the neighborhood" we bought into. They are not following SClaw oreven their own new (illegally) implemented bylaws and such. We fear that by the time we put our home on the market they will have such a Nazi-type neighborhood in place that they will be limiting potential buyers who are not looking for that our home would appeal to young families most likely.

(Yet the group in charge has already allowed the treasurer to install a poorly built sunroom addition that detracts from the neighborhood and another board member to place fake deer and flamingos in their backyard near the pond edge in full view from the entrance and my front window!! whatever they do is ok. (John you could never live here! lol)

We will be looking for a home in one of the nearby well established neighborhoods that have beautiful amenities, a well established sensible HOA that will truly keep home values up, (not just a complete power trip to rule over neighbors) (maybe even lawn maintenance, having a huge yard is sooo overrated).

WAY BEYOND FRUSTRATING!

We must try to continue to make them do things legally in order to protect our investment till we add some equity. (for the record we have no violations and are always complimented on how we maintain our property.) But what they are attempting to impose we did not sign up for when we purchased. They refuse to repair the entrance sign and are removing the original restriction that would force them to maintain it as declarant constructed it. We want it repaired as the CC&R's say it should be we want property values maintained.

EmmaH1
Posts: 674
Posted:
From what you all said I don't think they have done things correctly as far as the very radical changed/amended new CC&R's.

They did it by a "vote" (2//3) of members present. Not counting any members that did not show up for the meeting as anything, yes or no. (They did count 2 proxies as yes).

They did not count the people they view as "not members in good standing" as a yes or not (they told them they could not vote on the Amendment to the CC&Rs.

That alone would make their new CC&R's void and unenforceable wouldn't it? since SC Non Profit says that to amend the declaration/CC&Rs and changes to be binding on all owners/members their must be an agreement and "voting rules" don't apply for changes to the Original CC&R's, correct?

Am I correct in my view? (even the Bylaws they created don't state anything different then that.)

(Since their one-sided vote of their little clique worked "in their minds" they plan on recording it at the register of deeds. If they haven't filed it already. When do you think I should I question them about this? If I tell them now they won't believe me, they disregard what people that don't agree with them say. If I wait to confirm with attorney and ask him to send a letter, they will have already most likely filed it.)

thanks for your help

**and for the record we have met so many truly nice people in SC, their are good and bad everywhere.
EmmaH1
Posts: 674
Posted:
****If they would have counted all the lots/owners, they would not have even had a simple majority vote! (because the owners that did not show up or weren't allowed to vote would have all voted NO, and they know this!)
JohnB26 (South Carolina)
Posts: 1,001
Posted:
ps.

if you are still under declarant control (not yet built out) then 'all bets are off' as the declarant generally holds the required 'super majority' and can usually 'do as they please'

yep, it may be 'legal' and document compliant

go to the register of deeds and get an actual copy of the CCRs as actually filed

read them - read them again - then, reread them

CAVEAT EMPTOR
JohnB26 (South Carolina)
Posts: 1,001
Posted:
... Neighborhood was and still is not built out. ...


sounds like declarant control

EmmaH1
Posts: 674
Posted:
I mean they would not have even had a simple majority to "agree" to new CC&Rs.

**remember they did send out email and letter form statement to "member not in good standing" that they would not be allowed to "vote" on acceptance of this Amended Declaration/CC&R contract. (that is in writing)
EllieD (Vermont)
Posts: 446
Posted:
EmmaH,

You posted: “Our problem is that we purchased into a unique very small community with only a pond and a pretty entrance sign/with a water feature, relaxed not overly strict restrictions in place. Neighborhood was and still is not built out.”

In South Carolina, “very small community”, is approximately how many homes? And referring to “still is not built out”, is it possible that you are still under Declarant control?

EmmaH1
Posts: 674
Posted:
Well the original declarant bailed. He passed his declarant rights on to an investor it is recorded legally at the register of deeds. The declaration speaks of a HOA "to be incorporated by the Declarant". He did not do this, he maintained all common areas himself he asked for assessments from owners. This group got together and decided and create their own HOA, incorporate it and collect their own dues from people living here they encouraged people not to pay the declarant. They battled him, he took them to court, it went to magistrate court, it was "dismissed without prejudice" and as of now the orginal declarant has the option to bring it to a higher court to get delinquent owners to pay past money to him. He has moved on doesn't want to deal with them but assigned his declarant right to investor that bought last 6 lots.

That being said I don't know what you would consider us. Nothing has been determined by the courts. The investor that owns the remaining 6 lots has declarant control according to the register of deeds document. The new HOA claims that that recording is fake.

WE SAY: AS OF NOW EVERTHING IS Legally undetermined and no one should be making changes to the orginal CC&Rs at this point and we say their power has not been established legally. (they are overstepping their authority and should have gone to court to get a declaratory judgment if they wanted to make their claims of power.

HOW'S that for a COMPLICATED LEGAL MESS!!! (and I'm trying to condense 2 years of a "moving target" with things still changing into a couple of paragraphs for you).

They say they are in control, the investor who was assigned declarant rights does not agree. I think they should just let him finish out the subdivision and not antagonize him by trying to bully him, but they aren't doing that they are telling him he need to hand them control.

ALL That being said ------what is your opinion on what they are doing "assuming they are in legal control"? If they were in control would they be able to amend the cc&rs as they did?
EmmaH1
Posts: 674
Posted:
very small here would be 25 lots, 17 living here, 1 lot bought by individual builder, 1 owner has 2 lots, 6 lots owned by investor that has on record he was assigned declarant control (but has not exercised any powers as of yet).

It is truly a messy situation all around.
EmmaH1
Posts: 674
Posted:
I have the original Declaration of Restrictions straight from the deeds office.
EmmaH1
Posts: 674
Posted:
This group believes that power was passed to them, and lets just say it went to court and they were right or they do gain power by a declaratory judgment............even then would they be able to change the CC&Rs in the manner they did under SC non-profit law? my original question?

*all this other stuff could go many ways in court who knows, so many grey areas, and someone has to spend the money to initiate it. It may never happen. It would be so expensive for all.

(I bet you are all jealous you weren't lucky enough to build in my neighborhood, lol)
EmmaH1
Posts: 674
Posted:
I'm trying to establish whether or not they are even following SC non profit law (aside from the other stuff)
JohnB26 (South Carolina)
Posts: 1,001
Posted:
if you are declarant controlled

then the declarant actually DOES have the necessary votes even if they do not follow 'procedure', they would still be able to amend the CCRs even WITH proper procedure being followed as MOST 'declarations' reserve a 'super majority' type of vote/representation for the declarant until after 'turnover'

you apparently are affixed by a spiral inclined plane

plan on either:

living with situation until turnover

or

moving down the road
EmmaH1
Posts: 674
Posted:
The new investor owner of the 6 lots is not involving themselves in anything that happens here. They on paper have been "assigned declarant rights" recorded at register of deeds.

The so called HOA is saying that the original declarant did not have the right to transfer declarant rights over to the new investor as he did.

The HOA claims we are not under declarant control and that the record at the deeds office is not valid.

The HOA sent the investor a letter asking them to give in to them, the investor is ignoring them.

Nothing here is settled everything is gray. No one has sought a judgment to decide anything.

WE ARE IN LEGAL LIMBO-----IT"S NUTS!

I'm willing to ride the wave and just wait till everything is settled and final. But even though they do not possess legal authority, continue to try and make changes that they say will affect my property and my rights. They are trying to make all kinds of changes to amend the CCRS now. They do not have the power assigned to them to do. (I think I must state and document that I am not agreeing to these changes don't you, If I just keep silent then that may be seen as agreement?)

(And in the meantime I am trying to gain as much knowledge as I can so I will be able to keep them in line) (just in case I can't move on and sell my home.)

These people are very power hungry. They don't like questions. They don't like opinions except their own. They are very petty, gossip driven and vindictive and I have personally witnessed discrimination.

They don't like smart people one of my neighbors said to me. They just want robots. They should post a sign "No thinking allowed".

I don't expect you to solve all my problems, but thanks for your comments and advice.

TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By EmmaH1 on 11/20/2014 4:08 PM

WE ARE IN LEGAL LIMBO-----IT"S NUTS!

In my layman's opinion, it sounds like you will be in legal limbo until:

a) Declarant exercises their rights again and challenges the Corporation claiming to be the Assocaition.
b) Declarant recognizes the Corporation as the Association
c) A member takes the issue to court for a ruling to clarify the issue. The member could do this by contesting paying assessments to the Corporation.

Hopefully, the entity with Declarant rights and the Corporation can work out a compromise.

EmmaH1
Posts: 674
Posted:
Agreed.

And a very wise assessment of the situation.

(if they don't work it out it could mean lot of money for the lucky Lawyers)

You summed it up very well as usual.

🎯 You've read this entire discussion

Join the conversation with 50,000 HOA & Condo Leaders:

  • ✓ Ask follow-up questions
  • ✓ Share your experience
  • ✓ Get expert advice
  • ✓ Access 350,000 discussions
Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in here

Terms of Use and Privacy Statement