An Architectural review committee, no HOA at all.

The builder set up a architectural review committee. We DO NOT have an HOA. The neighborhood is in Virginia. It was set up originally as a $25.00 a year fee to pay for the plants and lights at the two entrances. That was written into the covenants. We have no common area, just sign easements. Money collected from the home owners started to get used to take care of the developers unsold lots to mow down the weeds. In the covenants it states "The yearly fee is to pay for the maintenance of the entrance, sign, lighting, plantings and grass mowing". It also states that The Architectural Committee can raise the annual fee, but not more then the cost of living index. The developer has jumped the fees from $25.00 to $35.00 to $45.00 and again to $50.00 Clearly more then the cost of living index. I stopped paying because of the increases and he sued me in small claims for $95.00 which was for two years of unpaid dues. I showed the judge the original covenants that stated $25 a year and the yearly fees could not go above the cost of the living increases. The judge said that the developer based on his own covenants could not raise the fees more then the cost of living and since he has never put in for those increases that he had over charged me and that he (the developer) could not charge more then $25.00 and the developer owed me a refund. That was in August of 2014.

The developer rewrote the covenants (for the 4th time)and took out the part of only being able to raise the yearly fee by the cost of living and put in that he can increase the yearly fees by 10% and made this year's fee (2015) $75.00 and he can use the money for whatever he wants. He also changed the Architectural Review Committee into the Gilfield Village Neighborhood Committee established a sub committee to be known as the Architectural Review Committee.

He is making a HOA out of the neighborhood with doing it the legal way and tells the neighborhood that the fees will be used to defend the committees in court.

What can you do when someone wants to go to this extreme to steal from people? He acts like he is a HOA but is not. The local police said it is a civil matter that needs to be handled by an attorney. is there not a state agency that is there to stop developers from breaking the law.

Any help would be helpful.

Paul, I too am not an attorney but based on past postings, I don't believe he can change the covenants if any of the properties carry a VA backed loan.

In one association they made some allowable architectural changes. One owner, who was also a Property Manager, did not like the proposed changes and raised the issue that a mortgage holder would have to approve any changes. The BOD lawyer wrote her a letter concerning this and she dropped that objection as she was wrong.

If you don't have an HOA, what type of development do you live in? You can contact the state to see if there were any articles of incorporation filed and then pay a few bucks to get them sent to you. From your description of events it sounds like you do live in an HOA. If so, during the period you are under declarant control the declarant often has the authority to amend your governing documents to suit his or her purpose.

I answered your questions below with your questions or comments listed below.

First, I do not know if this is a factor. We are not an HOA. The builder wrote up covenants so that there would only be large homes built and what style homes could be built. We are not an HOA.

1) How many lots are in your Association?
There are 115 lots or homes in our development. It is not an HOA.

2) How many of the lots are owned by the developer (or conversely, how many lots have been sold)?
The developer owns 16 remaining lots.

3) What was the language used in your initial CC&Rs (Declaration of Covenants) concerning amending the document?

Protective Covenants & Restrictions
A. Covenants and Restrictions. These restrictions are to run with the land and shall be binding until January 1, 2018, at which time said restrictions shall automatically be extended for successive periods of ten (10) years unless by instrument duly signed and acknowledged by the owners of the property constituting not less then 75% of the lots shown on the plat, said restrictions are terminated in whole or part. By instrument duly signed and acknowledged by the owners of all lots shown on the plat, these restrictions may be amended at any time.

Just because we have entrance sign easements does not make us an HOA. You have to file paperwork to become an HOA and obey the laws of the state that tell HOA’s what they can and cannot do. The State of Virginia says we are not an HOA, and the developer does not claim to be an HOA. The real estate agents tell people looking at the property tell clients that there is no HOA.

Since you have deed restrictions (CC&Rs), common area (entrance signs) and pay assessments to maintain those common areas, you do have a homeowners association. NO WE DO NOT HAVE AN HOA IN THE DEVELOPMENT. WE ONLY HAVE TO MAINTAIN THE AREAS AROUND THE SIGNS. THERE IS NO OTHER COMMON AREA.

It also appears (based on real estate listings - as you did name your development) that you have a Lake/Pond and roads that the Association also maintains. THE ROADS ARE PUBLIC ROADS AND ARE MAINTAINED BY VDOT (Virginia Department of Transportation). THE LAKES AND PONDS ARE ON PRIVATE PROPERTY. THIS IS WHAT IT SAYS IN THE COVANANTS IN REGARDS TO THE PONDS/LAKES. EACH OWNER OF ANY POND/LAKE LOT SHALL BE RESPONSIBLE FOR THE MAINTENANCE OF THE SHORELINE ON THEIR LOT AND SHALL HAVE EQUAL RIGHTS IN THE USE AND ENJOYMENT OF THE POND/LAKE WITH THE ADJORNING POND/LAKE LOT OWNERSANY REPAIR OR MAINTENANCE OF THE POND/LAKE ITSELF SHALL BE EQUALLY SHARED AMONG THE OWNERS. I HAVE LIVED HERE FOR 8.5 YEARS. THE PONDS/LAKES ARE PRIVATE PROPERTY.

Roads (THE ROADS ARE MAINTAINED BY THE STATE OF VIRGINIA.) and Stormwater Management Ponds/Lakes are very expensive to properly maintain.(ALL OF THAT PROPERTY IS ON PRIVATE PROPERTY AND THE COVENANTS STATE IT AS SO AND THE OWNERS OF THE PROPERTY THAT SURROUND THE LAKES/PONDS ARE RESPONSIBLE FOR THEM)

IN THE COVENANTS THE DEVELOPER SAYS THAT MAINTENANCE OF THE LAKES AND PONDS ARE THE RESPONSIBILITY OF THE LOT OWNERS THAT OWN THAT PROPERTY. HE CHARGES THE LAKE/POND OWNERS AN ADDITIONAL FEE ABOVE WHAT HE CHARGES THE NON LAKE/POND OWNERS.

It does seem like your developer is trying to manipulate the situation for some reason. Just because he is the developer does'nt mean he can just change anything he wants, he also needs to abide by the governing documents that are filed with the deed. You and your neighbors need to consult with very good attorney and establish what he can and cannot incorporate into the documents attached to your property after your purchase, he will be able to tell by reading all of your governing documents as a whole. The developers power to amend is not limitless. I'm not familiar with VA HOA laws, time line for registering a legal HOA, disclosure laws etc.,. Get these facts from an attorney, be very picky about the one you choose (I'd consult with more than one--never hurts, most initial meetings are free or minimal charge). Good luck

The reason is money and power. He can not turn us into a HOA now. It is too late. Disclosure law from a HOA point do not apply to a non-HOA. He tells us what he spends and does not show receipts even when he is asked for them. Thanks for the advice about talking to more then one attorney.

The LLC is the developer’s company. He deposits all the money collected from the homeowners right into his development company. But before someone comments on that, yes, everyone knows that is wrong.

Robbing a bank is wrong and against the law, but until the police find you and prove that you robbed the bank, you get away with it.

Paul,

Again, keeping in mind that I am not an attorney and do not work in the legal profession,

I'm going to point out that regardless of what you call the development, per the Property Owners' Association Act and what you posted, your development appears to be subject to that act.

See § 55-508. Applicability [emphasis added]:

A. This chapter shall apply to developments subject to a declaration, as defined herein, initially recorded after January 1, 1959, associations incorporated or otherwise organized after such date, and all subdivisions created under the former Subdivided Land Sales Act (§ 55-336 et seq.)

See § 55-509. Definitions [emphasis added]:

"Declaration" means any instrument, however denominated, recorded among the land records of the county or city in which the development or any part thereof is located, that either (i) imposes on the association maintenance or operational responsibilities for the common area or (ii) creates the authority in the association to impose on lots, or on the owners or occupants of such lots, or on any other entity any mandatory payment of money in connection with the provision of maintenance and/or services for the benefit of some or all of the lots, the owners or occupants of the lots, or the common area. "Declaration" includes any amendment or supplement to the instruments described in this definition. "Declaration" shall not include a declaration of a condominium, real estate cooperative, time-share project or campground.

Typically when a property that is in a development subject to this Statute, they are considered to be within a homeowners association.

Again, something to ask a local attorney to be sure.