Valid amendment to CC&Rs

Regarding the validity of an amendment to the CC&R's, am I correct that----- no CC&Rs have an "unlimited scope of power" to add more restrictive or unreasonable restrictions that add burdens to individual personal property?
The amendments added to an already existing CC&R/contract cannot be changed in a way that would add an unforeseeable restraint on the properties use? correct? (not referring to common area, just personal property).

For instance if you purchased a property with no restrictions on how many dogs you can own and after 5 years the HOA decides to amend the CC&R's to say you may only have 1 dog, even if they get the required percentage to agree it still won't be enforceable on who bought their property prior to that amendment, correct?

Majority or even super majority would not be able to add unpredictable restrictions to the use of ones private property. They must be changes that can be construed to be original Declarants intent, am I right?

Thank you,

I'm trying to gather anymore reinforcement. Also see if there are any other arguments/angles on either side I've missed. I'd like to be prepared for the other sides argument if we end up in court. (hopefully we don't need to go that route.)

Your comments have helped me in the past and been very relevant to my constantly evolving situation.

Emma,

My understanding is that this would be incorrect. The CC&Rs are contracts and contracts can be changed by the parties involved.

Now, within HOA's there is typically some sort of language (or should be) in any amendment that does more restrictive amendments, which grandfathers earlier situations. Just keep in mind that grandfathering is not automatic. It must be written into the documents (which is one of the first things I lobbied for in my Association - a grandfather clause).

The court case Bob referred to is DREAMLAND VILLA COMMUNITY CLUB INC v. RAIMEY. Being an AZ case, it likely has zero precedence in States outside of AZ. However, it can be cited and, if the judge desires, taken under advisement. However, I don't think it would really help. There are simply too many differences.

I agree that things such as the smoking not being allowed makes sense because it would be covered under the health, safety and welfare..... I forgot to add that I understood that certain exceptions like that one are allowed.

I was looking for similar opinions/examples of the laws prevailing over the CC&R's, and reflecting the current code or law in order to be enforced, like you said.

(Some contracts are not able to be enforced in court because they are rendered "void for vagueness" or too ambigious, unenforceable).

A true example in my neighborhood of single family homes occurring now:

CC&R's do not mention at all anything pertaining to pets, nothing, completely silent.

The HOA says they can amend the CC&Rs to state "no owner may domesticate more than 2 dogs or 2 cats".

(They are trying to change other more important things than that but it's an easy example to work with.)

My refusal to agree I can be forced to consent is based on these feelings:

I bought my single family home with 1 acre of land, knowing that there were no restrictions on pets. I have 2 little yorkies and some day I MAY decide to get a big dog for protection. I bought my home with this in mind. (If the restriction was in place when I bought I would abide by it it was not.)-------furthermore I mentioned this to the President he said "who will even know if you get another dog?" I said I'm not comfortable agreeing to abide by something even if your telling me you'll let it go.------a step further what if I want to sell my home (with its big backyard that would appeal to dog lovers? they may not buy my home because of this restriction, I know I wouldn't have. This amendment would be limiting my buyers!) I'm not just worried about being grandfather in. Know what I mean? Where I live people look for homes without overly-strict restrictions. Realtors advertise this as a asset, now this group of people are trying to amend without power and according to their personal taste.

**we do have a nuicence restriction in place should pets become a problem it could be addressed that way---barking dogs etc; one could have 4 quiet well maintained dogs and someone could have one noisy, howling dog that disturbs everyone.

Thanks for your input, I know its not legal advice but hey even lawyers disagree.

Emma, I'm not an attorney but IF the Board proposes a change to the Covenants AND the required number of homeowners vote to accept it, then yes IMHO it would be valid. Of course you have the right to actively campaign against the change.

I was told by a local SC attorney that read my CC&R's that the HOA can change a lot in regards to matters affecting the common areas but they cannot add more restrictive covenants affecting my property to the CC&Rs without my consent. She said don't let them convince you differently. She was adamant about it. She told me if a HOA attorney tells me different to report them to the SC Bar. In SC maybe the lack of HOA law for single family homes and falling back to contract law is why? She said SC courts ALWAYS favor "free use of property" when issues like these arise. She said something in the original CC&R's must refer the subject to be added.

I appreciate any responses and was wondering if anyone personally had a issue like this come up in their HOA? Has a homeowner ever questioned anything like this point, to any of you all (if your on the board)? I know most homeowners aren't that involved and just go with the flow. I always ask for proof before I commit.

Thanks again

and yes SC does allow some case law in other states to be used as precedents (hope I spelled that correctly)

Going back to the dog case example there is no language in my CC&R's mentioning any type of restriction on pets whatsoever.

I believe what they could add it that for instance pets must be on a leash or carried on common grounds or must be picked up after etc; that would be legal and reasonable and I would not reject or question it.

*not that its relevant but there has been no problem with my pets or anyone elses pets, so it is not being added to address a existing problem within the neighborhood.

Thanks Glen, but its a little more complicated that you just made it seem. It concerns property rights and the legal right to change CC&RS in a way to add a completely new and more restrictive covenant than the original.

Also, we do have a clear and set in place restriction in our original governing documents that does not allow "livestock of any kind", (chickens, goats etc). The proposed addition would be concerning PETS (domesticated dogs and cats specifically as they have worded it).

I believe "trying to prevent something down the pike" can only be added if your authority is granted by the law. If you don't have the legal authority then the rule can't be added and enforced.

On the flip side all were aware of the absence of any pet restriction when they purchased their homes here.
New restrictions can't just be added at a whim or as a precaution, even by vote. Think about it from the other side Glen, if you wanted to live somewhere that something is not allowed then you should shop around for a neighborhood that has that restriction------not buy a house and try to add it after the fact.

But thank you for your opinion Glen, I appreciate it but I wish you would have give me some facts or proof to back up your opinion/position.

I don't believe this is a properly amended covenant that's the issue.

On top of the fact they did not follow SC NON Profit regarding voting procedure,, they don't have the legal authority to add that even if they followed proper procedure.

Hi Tim,

I'm there is so much going on here you would not believe, so I'm trying to gather info on each "wrongdoing" as individual subjects if I can (otherwise everyone would be so confused--and I wouldn't blame them for it).

Some of the answers on the list you made (and I'm impressed you were able to remember all those issues) are simple yes and no's and some might take a paragraph to explain the scenario in full.

(For example The the Original Declarant went to magistrate court only to collect money owed from the owners that refused to pay him for the Street lights, sign, pond, landscaping etc. It was dismissed without predjudice because it got so complicated the master said it needed to go to upper courts---was left unsettled and unpaid. The current BOD is actually and half the membership are technically delinquent in assessments they never paid to the original declarant. It was brought to the wrong court magistrate court here is heard by lawyers not judges. (It could still go to court the limitations have not run out. But that's a completely different issue although it is tangled up in everything else.)

We have spoken to lawyers they say we have a case and are willing to take it but honestly we are not sure it's worth it financially. Or if we can just protect our personal property rights enough to defend ourselves should they try to enforce any of their "new restrictions upon us and our property in the future". My guess is they will probably "leave us alone" but I want to be prepared to keep them in line. We have also been advised of other avenues such as complaints with the Attorney General, SC Bar for the very little involvement they had from their Attny. I believe we can prove he had involvement in the original false filing of documents with the Sec. of State (he purposely withheld pertinent information at the time of the filing we can prove it.)

They just recently are adding to the list of wrongdoing this attempt to add more restrictive covenants to their list.

I'm trying to establish and gain knowledge about that particular subject now because the rest is so complicated. (I think you summed it up before perfectly).

They also went ahead and held a election, created their own set of bylaws (none were in existence) before any of this has been determined valid and no authority proven. I'm telling you it's complicated and crazy. NOT NORMAL by any means.

I understand that but In this case, they did not have the power to incorporate in the first place.

They Declarant stated this over and over to them. He stated what they were doing was illegal and they were not the legal HOA.

He was the only one that had the right to incorporate a HOA according to our CC&RS. CCRS state "The Declarant shall form and incorporate the HOA" (there are no time limits stated, for him to do this.) They went ahead and did it against his will he had 11 lots still owned by him (Not that that would make any difference because the CCRS do not say he will do anything at the point of owning so many lots or not and SC has no laws for single home HOAs.

If they wanted to change who was to incorporate then they needed to seek a "declaratory judgment" to do it legally and have it be binding on all property owners. In essence they amended the declaration without permission from the courts, by incorporating it themselves. The CC&Rs were clear who had the right to do that.

The court would have probably advised the Declarant to incorporate and he probably would have. Or the Judge may have even given them power. They should have done that. But they did not want to because it would have to be done in court and the Declarant would have had the defense against these people that they owe him assessment money/dues for past dues and they did not want to pay him! They knew that so did their attorney. They did not want to go to court to do it the right way because they would be found guilty themselves.

He said they would probably be able to add/change thing pertaining to the common areas only. Which goes back to my original post and changing things on personal property like they are attempting to now do. We do have a problem with that.

We have a choice spend a lot of money to prove them wrong or wait for them to "try" and enforce it on us.

Even though it's more expensive, I would spend the money now to prove them wrong.

The reason being that the longer you wait, the harder it may be to prove that you disagree that you did not support their claim to the authority over your property.

You may be able to get other link minded members together to help fund the issue.

That is really a question for your attorney.