Can it get more complicated?

Started by KellyQ • 8 replies • 1708 views

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KellyQ (Alabama)
Posts: 3

Posted:

Phase 1,2 and 3 were built by Builder A and all have a shared covenant and HOA. Phase 4 and 5 were built by a different builder. For 20 years, the assumption has been that all 5 phases were covered by the covenants created for 1/2/3 and all homeowners paid dues. We have now discovered that phase 4 and 5 actually had totally different covenants filed with no mention of HOA or assessment dues. After researching the minutes, it appears officers knew about this 15 years ago and made remarks about getting a new covenant that covered all 5 phases, but there is no record of a vote or approval. They did state they wanted everyone to continue paying dues (of course!). There is no record of a "modified" CCR covering all 5 phases being filed.

Everything is a huge mess - the HOA has been putting and collecting liens on phases 4 and 5 as well as collecting dues for years. There is no liability insurance for anything. The officers are all residents of phases 4 and 5, except the president who has just sold her home partly to get out of the mess! A lawyer has been consulted but he doesn't even want to touch this situation it seems because who has the authority to handle it? Not everyone in the development knows about this because some people want to keep it "secret" and just continue on business as usual. I am against this and think we need to get the problems out in the open and then get it sorted out. I don't think any dues notices or liens or new financial obligations need to be made at this time since it seems to me the only valid members of the HOA are phases 1/2/3. I am not even sure that the HOA has been properly incorporated as not for profit.

Has anyone ever had such a situation? We are in Alabama by the way.

AllisonD (Florida)
Posts: 449

Posted:

We have a similar situation, the last phase is currently being built and we became aware that this phase is not part of our HOA. There was talk about them being able to use our RV lot but as far as I know, they are not. What I question is the common areas that would seem to be areas that the Master Board is responsible for; I will have to look into that and see who is maintaining those areas. They still get to use our master community name so its Their Community @ Master Community.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Kelly,

I know of an Association in Frederick County VA that has a similar situation. Although the 5 phases are part of the same Association, the way the developer filed the documents, each phase has it's own set of CC&Rs. This, along with other issues, is the reason why I quit looking within that development.

You will likely need an attorney to assist and support from the membership of all phases to correct, or at least sort out, the situation. If the one attorney chose to not take the work, look for another.

SkunT (Ohio)
Posts: 73

Posted:

Actually here in this state there is 1 Community with 7 sections and only 2 of them have a HOA deed restriction and 2 different HOA's in the 2 sections that has a Deed restriction under different names., Your going to find out when repair times comes for things like sewage, street repairs Your HOA will have to pay the repair bills even to the None HOA sections due to you assumed liability with the city for the entire community if say like you have any type of parking restrictions, then your on a Private street HOA like it or not.

I am in Community with a HOA deed restriction and my Community HOA has been trying to get us to join for over 10 years now. You can't make them/us join a HOA if there is no Contract anywhere. the only thing your HOA can do is ask them to voluntary join it, but figure the chances of it happening you need 100% of the non-HOA owners to agree to joining it.

Basically your HOA is in no position to change the deed restrictions or whatever, you can't just go abra cadbra Poof your in our HOA now and redo something that's now Illegal..

I know for fact, your going to fight a loosing battle. Imam one of them that's in a HOA community but not in a HOA. even if all the others in my section wants to join, tuff luck for the rest of them. I'll be one of those Pink and rainbow colored house with garden nymphs everywhere and multi colored tire's with flowers in them if they voluntary join it somehow. Some states allows it maybe. but do think it takes 100% to agree to a contract like a HOA.

That HOA was lucky I didn't sue them the 2nd time they tried to say where in their HOA due to were in their community. 3rd time, will just won't bother answering them except my lawyer and own everything in it including equity in their houses.

Careful starting something in that HOA and making claims their in a HOA which you in fact knows their not and there's just one of me's types waiting.

SkunT (Ohio)
Posts: 73

Posted:

OBTW I dealt with a developer and 2 separate law firms that tried to say we were in a HOA by just them pointing at the recorded deed restrictions and in the new developers HOA community. Sure you can bluff and do some serious threatening posturing's, I was one of those pesky attitude ankle biter puppy's.

Sending letters in the mail like illegal billings, is one mail fraud, 2. Wire fraud if even one lot owner that's not in your HOA and pays a HOA bill online. 3. Demanding money for services not asked for or not subject too is a Crime. this HOA is going to learn that next time.

SkunT (Ohio)
Posts: 73

Posted:

As for the common area's go to your county auditors web site look at the map click on the common lots and see who's been paying the tax's, if it now say's the city guess what they've seized your lots and is now the city property for none tax payments.

the very same sight has the HOA lots click on the other lots you say are not subjected to the HOA and read their restrictions links on it. then the recorders office for the recorded deeds and restrictions, type in your HOA name to find them and all the liens.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Kelly,

You have a real mess from several different standpoints. Those who own homes in phase 4 or 5 are apparently not even members of your association. They have no legal authority to vote and their eligibility to serve on the board or as officers is questionable. If your association filed any court actions against owners in phase 4 or 5 there is the remote possibility of being held in contempt of court for perpetrating a fraud or being held criminally liable for extorting funds. The recognition of the problem in minutes from 15 years ago is especially troubling as the board recognized that a problem existed and chose to ignore it. (BTW, knowing there is a problem and deliberately ignoring it is the very definition of gross negligence.)

Are you on the board? If so, I would highly recommend hiring an attorney to advise you as to what liabilities you personally may have for your part in this.

On the other hand, it may not be that big a deal. If there are common areas (roads, playgrounds, pools, etc.) maintained by your association and available for use by those who reside in phase 4 or 5 then they may have a legal obligation to contribute to upkeep. I know of at least one court opinion that holds that all who use a privately-maintained road may be compelled to pay for a share of the upkeep. But, without a recorded covenant the association would have no lawful authority for file liens or seek foreclosure.

SkunT (Ohio)
Posts: 73

Posted:

Quote:

Posted By LarryB13 on 02/01/2015 11:52 PM
Kelly,

You have a real mess from several different standpoints. Those who own homes in phase 4 or 5 are apparently not even members of your association. They have no legal authority to vote and their eligibility to serve on the board or as officers is questionable. If your association filed any court actions against owners in phase 4 or 5 there is the remote possibility of being held in contempt of court for perpetrating a fraud or being held criminally liable for extorting funds. The recognition of the problem in minutes from 15 years ago is especially troubling as the board recognized that a problem existed and chose to ignore it. (BTW, knowing there is a problem and deliberately ignoring it is the very definition of gross negligence.)

Are you on the board? If so, I would highly recommend hiring an attorney to advise you as to what liabilities you personally may have for your part in this.

On the other hand, it may not be that big a deal. If there are common areas (roads, playgrounds, pools, etc.) maintained by your association and available for use by those who reside in phase 4 or 5 then they may have a legal obligation to contribute to upkeep. I know of at least one court opinion that holds that all who use a privately-maintained road may be compelled to pay for a share of the upkeep. But, without a recorded covenant the association would have no lawful authority for file liens or seek foreclosure.

Well here's my take on that issue if non-HOA lot owners can be in their Community BOD... The HOA if named as the name of the Community then everyone has a say in their community. since the non HOA lot owners can never be in bad standings with the community HOA they have rights to represent the Community even not in the HOA.

If a HOA has lot owners in their community that's not in their HOA, there's a serious problem already with that HOA as being developed properly.

Remember the HOA represents the Entire community if their HOA is named of the Community. only Fair.

SkunT (Ohio)
Posts: 73

Posted:

Quote:

Our community the new developer created a new entrance down the street, they could of changed their community name but they didn't, their sections have to drive through ours which once was City property but the developer agreed to maintain it for the entire community uses the original entrance to get to the other sections that's in a HOA.

Can't wait till this HOA comes knocking on our doors asking for contributions for their streets road repairs. I'll just show them the previous recorders map where the common areas belonged to the city when we bought the house.

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