Question about declarant selling all lots

Started by VictorM4 • 10 replies • 1644 views

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VictorM4 (Texas)
Posts: 4

Posted:

Our developer (declarant) sold all his remaining lots to a builder last summer. The articles of incorporation state that the declarant can pass on the status of declarant to another party, as long as they file a document with the county stating so. They did not. My understanding is that there is no declarant now, and the original developer cannot make someone else a declarant anymore.
The managing company is claiming the builder is the new declarant, but I'm challenging that. The exact relevant text is below:

"Declarant" shall mean ad refer to Morningwood Investments, L.P. a Texas limited partnership, its successors ans assigns, provided such successors and assigns (i) acquire more than one Lot in the Subdivision for purposes of development or resale and (ii) are designated as a Declarant by an instrument in writing executed by Morningwood Investments L.P., and filed of record in the Official Public Records of Real Property of Travis County, Texas.

There is no such document filed with the county, I've searched and searched.

Any pointers would be most appreciated.

JohnB26 (South Carolina)
Posts: 1,001

Posted:

"Morningwood Investments, L.P." is the declarant unless / until change is actually filed.

however

any covenants and restrictions are still in effect

and may NOT be changed by anyone EXCEPT Morningwood

unless / until change actually filed

VictorM4 (Texas)
Posts: 4

Posted:

Can they still be the declarant if they don't own any lots in the subdivision?

DouglasK1 (Florida)
Posts: 2,046

Posted:

Quote:

Posted By VictorM4 on 04/09/2015 7:20 AM
Can they still be the declarant if they don't own any lots in the subdivision?

Most HOA docs specify a point at which control passes to the residents (transition), do yours?

Escaped former treasurer and director of a self managed association.

VictorM4 (Texas)
Posts: 4

Posted:

Yes, one of 3 conditions are met:
10 years pass (not yet)
Residents have more votes than the declarant (which I think is the case)
When the declarant chooses to do so.

DouglasK1 (Florida)
Posts: 2,046

Posted:

Quote:

Posted By VictorM4 on 04/09/2015 8:08 AM
Yes, one of 3 conditions are met:
10 years pass (not yet)
Residents have more votes than the declarant (which I think is the case)
When the declarant chooses to do so.

The declarant normally has more than one vote per lot, do your docs specify?

Unfortunately, being right is only half the battle. Most states don't have an HOA "police" or ombudsman to enforce HOA rules and regs. Assuming the declarant hired the MC, told the MC that the builder was assuming the declarant role, and the builder has assumed that role, suing might be the only recourse to force turnover.

Escaped former treasurer and director of a self managed association.

VictorM4 (Texas)
Posts: 4

Posted:

Yes, 20 votes per lot. We are ready to sue if necessary.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Think you're standing in quicksand.

All he has to do is file a doc with registry of deeds to correct his error and become compliant. If I was him, and you sued for failure to record, I would record - and that would be that.

Sikubali jukumu. Read all posts at your own risk.

JohnB26 (South Carolina)
Posts: 1,001

Posted:

D'OH

FredS7 (Arizona)
Posts: 927

Posted:

> are designated as a Declarant by an instrument in writing executed by Morningwood Investments L.P., and filed of record in the Official Public Records of Real Property of Travis County, Texas.

It seems to say that (presumably at any time) Morningwood can designate this new company as a declarant.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By FredS7 on 04/09/2015 12:18 PM
> are designated as a Declarant by an instrument in writing executed by Morningwood Investments L.P., and filed of record in the Official Public Records of Real Property of Travis County, Texas.

It seems to say that (presumably at any time) Morningwood can designate this new company as a declarant.

u betcha.

Sikubali jukumu. Read all posts at your own risk.

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