100 % of members needed to end declarant management

Started by BonnieG1 • 7 replies • 1495 views

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BonnieG1 (Nebraska)
Posts: 1,186

Posted:

Some time ago someone asked to quote from our documents where it stated we needed 100% of the members to agree to determinate professional management by the "declarant" I did find in as I was reviewing the docs in preparation for updating them.

It is under an article describing the Board's responsibilities.

The paragraph
"Enter into contracts necessary for the professional administration of the association and the maintenance and operation of the Common Areas and Facilities.....................................................
"The decision by the Association to terminate professional management of the property by the Declarant shall require the written consent of the Owners of one hundred percent (%100) of the undivided interest in the Common Areas and Facilities and all First Mortgagees."

We are probably the only or one of very few condominium associations that have anything like the above stated requirement.

I think the church organization wanted to keep their hands in our business forever.

RichardP13 (California)
Posts: 163

Posted:

That is not an uncommon statement "when" the declarant is still in control.

BonnieG1 (Nebraska)
Posts: 1,186

Posted:

Quote:

Posted By RichardP13 on 02/04/2015 8:21 PM
That is not an uncommon statement "when" the declarant is still in control.

That is interesting. So since the declarant is no longer in control, this statement doesn't apply?

The church organization was our management company until 2010. We were established in 1981.

RichardP13 (California)
Posts: 163

Posted:

It wouldn't apply IF the declarant isn't in control any longer.

RogerB (Colorado)
Posts: 5,067

Posted:

Bonnie, You did not state which document you quoted. You may want to check to see if your state has a statute which overrides this. Or if it is in the Bylaws then the Declaration of CC&Rs may contain language which overrides this Bylaw. The Colorado Common Interest Ownership Act provides for 2/3 of the owners unless the Governing Documents provide for less.

BonnieG1 (Nebraska)
Posts: 1,186

Posted:

Quote:

Posted By RogerB on 02/05/2015 7:16 AM
Bonnie, You did not state which document you quoted. You may want to check to see if your state has a statute which overrides this. Or if it is in the Bylaws then the Declaration of CC&Rs may contain language which overrides this Bylaw. The Colorado Common Interest Ownership Act provides for 2/3 of the owners unless the Governing Documents provide for less.

Since some owners have had and do have a "love affair" with the church organization it has been hard to convince some that the church organization doesn't own our Common Areas and that we were mpt in error by "breaking away" from them. I do agree that the way the vote was taken in 2010 was not the correct way to take a vote. No complete notice of what we would be voting on and the President at the time trying to just explain verbally what we would be voting for.

There is a law that does override this requirement and according to this law we no longer have a declarant. But for some of our owners to believe that it may have to come in writing from the lawyer who will be helping us update our documents.

A lady who used to be a Board Member did not want to sign that the Association would not exercise the "first right of refusal" for a condo that was to be sold. She was very upset that we weren't giving the "first right or refusal" to the church organization. In the past years, the Association asked the church organization to give written notice that they were not the declarant which they refuse to do. This was before we had a lawyer or anyone was seriously studying the laws.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By BonnieG1 on 02/04/2015 8:28 PM

Posted By RichardP13 on 02/04/2015 8:21 PM
That is not an uncommon statement "when" the declarant is still in control.

That is interesting. So since the declarant is no longer in control, this statement doesn't apply?

Hi Bonnie

In your shoes, the first thing I would do is to ask the lawyer to remove all language relating to the Declarant. Some HOAs do this to make their docs readable after they are done with declarant control. It makes sense.

After the lawyer makes those changes, she can make the modifications you want to put in place now. But you should start with a document that is suited to your current situation.

Sikubali jukumu. Read all posts at your own risk.

KerryL1 (California)
Posts: 14,550

Posted:

Yes, I', with NpS, this is entirely a legal question and needs to be dealt with by your attorney in writing. I know you have a lot of sensors so the attorney's opinion should take that into account and the former close relationship with the church.

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