owner selling 2units as one unit

We have an owner (prior board member) who owns two units, 103 & 104; these are 2 different parcels, it is listed with the mls as 1 unit. The yards between the two units have been combined with a pergola, pond, rock patio, spa, etc.

The owner (previous board member,President)made these improvements without approval of an articheural committee and without any reference to the improvements in the minutes. She stated in the minutes 7 years ago (after she was forced by the other owners) that when she put these units up for sale she would put the fence up between them to separate them. She is now refusing and has hired an attorney and the property is listed with a realtor as one unit.

Shouldn't this just be very simple? We are a California PUD with 14 units and a HOA. Do we have to get a lawyer or can we stop this if it gets to the title company in escrow?

thanks for your help!!
ShirleyC

Are there 2 deeds?
Have there been any attempts to merge the deeds?
Are both of the deeds individually subject to the CC&Rs?
What are your concerns?

> what?.........

Are you concerned about

- reversing the physical changes to be consistent with rules

- preventing a new owner from thinking he only needs to pay one unit worth of dues?

we are concerned about both issues. should we make them change it back to original state?..does it matter, are we obligated as the board to pursue this issue.........thousand questions;

Since this has gone on for so long, I'm not sure what the big deal with the MLS listing is.

Has the current owner been paying dues on both units? Are dues current? If so, I see no reason the new owner wouldn't do the same.

As far as the unapproved changes, doing anything about that will most likely involve a court battle, with a good chance of the association not prevailing since the violation has been allowed uncontested for so long.

If you have an agreement that a change will be made upon sale of property, then statute of limitations should be deferred until the sale of the property.

On the other hand, you may be at risk of being sued for interference with a sale.

In PA, there is a statutory requirement for the HOA to provide a seller with a resale certificate. The resale certificate must identify anything that needs to be brought into compliance in the event of a sale. If not mentioned, in the resale certificate, the sale can go through and the buyer does not have to remedy the non-complying issue.

Wondering if you have a similar requirement in CA?

thank you for your comment. I thought that the minutes were a legal document

I'm just going by the fact that the estoppel requests we receive generally ask about current violations, I assume the closing agents pass that info the buyers. It might not be required by law, but that appears to be the way it commonly works.

now you're talking. that makes perfect sense. thanks

Shirley

My main concern would be that the new buyer realizes they are two separate lots/units. Meaning two monthly dues and two HOA votes.

So, Shirley, as others have suggested, we in CA also have a disclosure requirement that sellers must comply with. Now your HOA isn't the seller, but I see no reason why your board president cannot send copy of the minutes in which seller agreed to return the two lots into their original configuration to the seller and request that she inform her realtor and her title company. Then, at least your HOA is on record as trying to get seller to adhere to an agreement she made that's recorded in your HOA's official and approved minutes. But she didn't sign such an agreement. Or did she? As prez, did SHE happen to sign those minutes????

Does your board have to worry about NpS's warning that you might be interfering with a sale? I don't know--it doesn't seem right. I do think that an escrow officer can advise you.
.
Here is a disclosure, part of a longer list, that is required in CA:

DAVIS-STIRLING ACT
Civil Code §4525. Disclosure to Prospective Purchaser. This must occur prior to the close of escrow.

"(5) A copy or a summary of any notice previously sent to the owner pursuant to Section 5855 that sets forth any alleged violation of the governing documents that remains unresolved at the time of the request. The notice shall not be deemed a waiver of the association’s right to enforce the governing documents against the owner or the prospective purchaser of the separate interest with respect to any violation. This paragraph shall not be construed to require an association to inspect an owner’s separate interest."

The above is actual statute, Shirley, but you might like to visit Davis-stirling.com to see what those HOA attorneys here in CA have to say about various topics.

Next, are you sure the listing says it's only one lot? Aren't there two APN#s on the mls listing? Even if not, the escrow company when it issues a title insurance policy, will show that there are two parcels. So I don't think I'd worry about that part. The escrow company also will request certain documents from your HOA, right?

I get Larry's Statutes of limitation argument, but I cannot say that he is correct in dismissing your minutes of 7 years ago. We Boards make agreements and policies that are recorded in the minutes all of the time; they are all enforceable. They don't "run out" or expire.

This is my take too. The secretary could put anything in the minutes, and the board could approve those minutes. Without something signed by the owner, then it could just come down to he said/she said.

the minutes are a legal document in California. You can actually lose your non profit status by not keeping minutes. The owners were present at the meeting where these minutes were recorded so we have at least 10 witnesses to the statement.

A writing can still be found valid if not signed. The seller was the board prez at the time. She allowed the minutes to be approved without objection. I think she would have a hard time claiming that the minutes only record an oral agreement. That argument could hold if she was only a HO and not a board member - But that's not the case here.

I agree that the board may be threatened with interfering with a sale - but anyone can make such a threat. IMO, there is no interference if the HOA notifies the seller of the deficiency. That puts the seller on notice but does not intefere with any sale. I also expect that the seller has an obligation to notify the buyer if the violation is not corrected before the sale. Again, that responsibility belongs to the seller - and again, I see no interference with the sale.

Seven years is probably past any required need to keep those minutes, and in any case, laches could apply

Our neighborhood has a similar case but all the construction was approved... the only issue is that the property pays double HOA dues and assessments, since all dues are based on the original plate of the land...

You're right about Cali, Shirley:

"INSPECTION OF MINUTES
Minutes dating back to the beginning of the association's existence must be permanently available for inspection. This includes minutes of committees with decision-making authority as well as board and membership meetings. (Civ. Code §5210(a)."

Read more: Inspection of Minutes http://www.davis-stirling.com/tabid/2692/Default.aspx#ixzz3fK0mGeEe
from Davis-Stirling.com by Adams Kessler PLC.

I'm glad a few voices of reason chimed in to balance Larry's emotional replies. He sometimes gets his skivvies in a knot about CA and/or me. Don't take it personally.

If you still wonder if seller combined her two lots, check with the county recorder's office. Since seller ignored some of your other governing docs, she might have ignored one that you have that may say lots may be combined, but only with the approval of the ARC or the Board. (Ours say this.) But there are still two lots on title, two sets of dues and two votes. If she's paying dues for two lots then no worries I'd say.

Where exactly is that written?

5210. (a) Association records are subject to member inspection for
the following time periods:
(1) For the current fiscal year and for each of the previous two
fiscal years.
(2) Notwithstanding paragraph (1), minutes of member and board
meetings are subject to inspection permanently. If a committee has
decisionmaking authority, minutes of the meetings of that committee
shall be made available commencing January 1, 2007, and shall
thereafter be permanently subject to inspection.
(b) When a member properly requests access to association records,
access to the requested records shall be granted within the
following time periods:
(1) Association records prepared during the current fiscal year,
within 10 business days following the association's receipt of the
request.
(2) Association records prepared during the previous two fiscal
years, within 30 calendar days following the association's receipt of
the request.
(3) Any record or statement available pursuant to Article 2
(commencing with Section 4525) of Chapter 4, Article 7 (commencing
with Section 5300), Section 5565, or Section 5810, within the
timeframe specified therein.
(4) Minutes of member and board meetings, within the timeframe
specified in subdivision (a) of Section 4950.
(5) Minutes of meetings of committees with decisionmaking
authority for meetings commencing on or after January 1, 2007, within
15 calendar days following approval.
(6) Membership list, within the timeframe specified in Section
8330 of the Corporations Code.
(c) There shall be no liability pursuant to this article for an
association that fails to retain records for the periods specified in
subdivision (a) that were created prior to January 1, 2006.

My goodness! What was I thinking when I actually looked up California's statute of limitations on Davis-Sterling? And look how emotional I got when I pointed out that the OP's association had five years to pursue a violation and not the seven years (or maybe forever) that everyone else seems to think applies! And I must have been out of my head thinking that rules of evidence would apply that would render the minutes useless as proof that there was an agreement. Obviously, people who have never filed a civil complaint, written a memorandum of points and authorities, selected a jury, or taken a case to trial would know more about these things than I would. I am so ashamed of myself.

So just go ahead and interfere with the contract as suggested. Go over to that property, rip out all that offends you, and just tell the judge to mind his own business at your arraignment on charges of criminal property damage. And above all else, do not bother to seek advice from an attorney because they just tell you stuff you do not want to hear.

Wow! I feel better already.

The problem with that argument is that under California law the alleged violation became non-actionable five years after it occurred. If you have case law or statutes that refutes what was posted on Davis-Sterling I, for one, am all ears. Otherwise, raising the issue now violates public policy.

Shirley,

I am not an attorney. I have represented myself in every level of state and federal courts for nearly 40 years.

What your minutes prove to me is that your association knew of the alleged violations at least seven years ago, which precludes the HOA from pursuing it now.

The alleged agreement cited in the minutes is of little useful value. It seems to be a verbal agreement. Aside from any statute of limitation issues, verbal agreements are always a problem to prove and all your minutes prove is that one party thought there was an agreement. Without live witnesses who can attest to precisely what was agreed upon the minutes themselves would do little to convince a judge that a contract was ever made.

The underlying problem is that an owner violated the covenants and neither the association nor any of the members took corrective action before the statute of limitations ran out. Your situation now is like a team who lost a basketball game taking to the floor after the final buzzer sounds. At that point, it does not matter how well they shoot because the game is over.

are there any attorney's on this forum?.......the minutes to me are as strong as the cc&r's or any rules.

I cannot wrap my head around the fact that they are meaningless.

thanks

And you would also have to prove that the agreement somehow extended the enforcement window for the violations beyond the five-year limitation.

In truth, the minutes are the most damning evidence against the association as it fixes a firm date when the association knew of the violations. The minutes prevent the board from claiming it had no knowledge until just last week.

Many years ago in my HOA, a board observed that roughly half of the storm doors were non-compliant. Each offending HO was sent a letter stating that the storm door would need to be removed or replaced with a compliant door when the property sold.

The board did not attempt to get signatures from the HOs. The board simply put each of the offenders on notice via letter from the board.

Let's assume that we had a 7 year statute of limitations. Some of you would say that if the property didn't sell within seven years, then those letters would have no effect.

I totally disagree. IMO, the board at the time made an accommodation - which the board is allowed to do under our docs.

IMO, the accommodation set a new standard that was evenly applied across the entire community.

If a 7 year statute of limitations was going to be applied, it should IMO start with the sale of the property. It's only then that anyone would know whether the HO would be compliant with the new standard.

And a family of four could live handsomely on the scraps that you throw away. What to do?