Forcing owners into an HOA in Tennessee?

When I purchased my house 11+ years ago I was told at closing that there was no HOA. There were no HOA documents to sign and there are no HOA attached to my deed. I have gone down to the record of deeds to verify this. There are some CC&R's but nothing about the HOA. What I didn't know was that the subdivision actually has a registered HOA but it is an optional "opt-in" association. Members can elect to join by paying some dues (yeah right who would do that?). This is why there was no information regarding it during the purchase process.

This optional association has placed a letter on everyone's mailbox giving them notice of a meeting in 30 days that will be to vote to make the HOA mandatory and to apply it to the entire subdivision! This obviously has me worried and I have some questions. I've reached out to an attorney and am waiting to hear back. While I wait I thought maybe you experts might have some insights.

If a subdivision has no HOA and the majority of houses vote one into place does this force it upon all of the people that voted no? I know these laws vary on this from state to state but I couldn't find the law for Tennessee. If that is the case then this is what is happening I guess.

Is a legal means of communicating this out to all property owners to place a letter behind the mailbox flag? Not a letter in the mailbox.

Not really an answer to any of my questions but yes I know what an HOA is. I moved into this subdivision specifically because I did not want anyone to tell me what I could or could not do with or on my property. If the HOA goes into place that is exactly what happens. I vote for more freedom, not less, but that is just one guys opinion.

What I would like to find out now is the exact laws that govern the creation of a HOA in Tennessee. How many houses must be in attendance, how far in advance does the notification have to go out and by what means, how many votes required in order for it to become a HOA that governs all of the houses.

I don't have any idea about the laws in TN, which is why I have taken to the forums! I'm also searching all around on any data I can find.

There is nothing in the CC&R's attached to my deed that say anything about an HOA. I am trying to get in contact with the person that sent the letter to ask some questions but I am not taking "their" word on what the law is or is not.

I totally agree with the attorney consultation, I have placed a call to a few and I'm just waiting on one to get back with me. I think a 1 hour consultation type thing (paid of course) is all that it would take to just understand what the law and my legal options are.

This is a fairly esoteric and unusual topic. It is not likely that you will find an attorney who can provide an answer off the top of his head. Run like hell from an attorney who claims he can.

If he is a good attorney he will need to do some research, for which you will pay, and from which you should receive a written opinion citing statues, provisions of your CC&R's, and case law. Take him copies of all your governing documents, your deed, the current CC&R's, and the notice you found.

For me, the big question would be whether the CC&R's may lawfully be amended to force an HOA onto property owners. There is a body of common law that has been adopted in some - but not all states - holding that increased obligations may not be imposed upon owners. A second but equally important point is that most states have laws prohibiting a person from being forced to join a non-profit corporation.

Couple things:

1) I am completely unaware of how you have CC&R's without having an HOA. It may well be that you can, I just don't understand it (like quantum physics... I don't doubt it exists, I just know nothing about it). My first advice is really, really read the CC&R's... and while you do, maybe someone here will educate me on how you have rules/regulations attached to a title, but no association running with it. Who attached them?

2) does this group of homes with CC&R's own any common property? Roads? Drainage easements? Lights? walls?

3) I second to the fourth power asking around and getting a real attorney's opinion, after BOTH of you have read the CC&R's, and the letter sent around.

4) And, just an FYI, placing anything not US Postal related into a US Postal Mailbox is a crime, so yes, if the group didn't put stamps on the letters, they probably didn't want to put them IN the mail boxes. Hanging things outside isn't illegal. It's why rural newspaper delivery often hang a separate box under the mailbox, for the paper. If it goes into the box, it's US Postal Service business. And must be "paid" for.

LOL.. and here I thought my neighbor, who lives in the community full time, only had a second mail box because he received too many newspapers to fit into his "regular" mailbox.

Thanks BrianB, this city girl learned something new .

Cameron,

Without reading your CC&Rs, nobody can be positive of anything.

Typically, the CC&Rs create the Assocaition.
This is done by the language within the CC&Rs.

Typically, if there is common area (land, storm water retention ponds, streets, sidewalks, etc.) or common amenities (playgrounds, clubhouse, pools, recreation facilities, etc.) or common services (trash/recycling, snow removal, etc.) that must be maintained or provided, then this would have created the Association. Again, this is done by language within your CC&Rs.

Typically, if the CC&Rs specify that everyone pays their fair share (per lot, per percentage owned, etc.) then there is an Association with mandatory membership.

The Association may or may not be active.
However, that doesn't mean that one doesn't exist.

As a resident in an HOA Community, I have found that HOA's are woefully misunderstood in Tennessee. Attorneys who truly know anything about how an HOA functions and who can provide experienced legal advice are few and far between--virtually non existent in Tennessee.

There is one firm, (Bob) Dinkelspiel, Rasmussen & Mink, based in Memphis, who are experienced in this aspect of Tennessee law. I found no one else who had any real concept of HOA law, in spite of several who professed, because they had helped to write Covenants or By -laws, that they were "HOA Experts".

If I understand correctly, there is legislation floating around the bowels of Nashville which would pull things together. Currently HOA "law" is part "non profit" and part "commercial/real estate". It takes a real mind bender to decipher what applies to an HOA, and what is superfluous. Ask ten attorneys and you will get ten interpretations of what applies in your situation.

Good luck finding an expert, and getting sound, workable advice.

? What do you mean TimB ?

? The OP should actually read the Covenants to which he/she agreed by signing for the deed ?

! NOOOOOOOOOOOO the HORROR !

! AAAAAAAAAAAAH my eyes are now open !

I guess the key word is/was 'attempting'.

Not humor, sarcasm

I feel like not only have we gone way off topic we must be talking about two different things. I have no problems with the restrictive covenants that are currently in place on my deed. Why? Because they don't tell me what I can and cannot do on my property. Example "A two story home must have at least 2000 square feet", "Each dwelling must have a 2 car garage", "Each property must be hooked up to the city sewer". You see how all of these things are just restrictions from the early 1970s based around what could and could not be built.

Again...There is nothing in there restricting what you can and cannot do on your property. For those unfamiliar with a HOA here are some examples for a subdivision nearby:
- Cant have a boat parked in the driveway
- Cant have a visible shed
- Cant park on the street

Why would I want anyone to restrict the use of my property?

Thanks to the few people that actually helped out with advice on this, I really appreciate your responses. I will report back after I talk to the attorney on what the laws are around creating a mandatory HOA.

Realistically, I disagree.

An HOA can impose restrictions outside of the CC&Rs and often do.
They may also enforce those restrictions.

Will such restrictions hold up if challenged through the courts?
Probably not.

Until they are actually challenged, the Board (unfortunately) may realistically do what they desire. They may be overstepping their authority, they may be knowingly or unknowingly be in violation of applicable statutes. The checks and balances for all Associations is the membership. If the membership is apathetic they allow those who are willing to serve to serve and make the decisions (good, bad or indifferent) that affect everyone within their Association.

The way I read it is that there are restrictions, like "no this" and "no that" but there are no restrictions stating there will be such-and-such HOA running the show, or any provision allowing for the formation of one. There is where the problem the OP has - an organization claiming to be the official HOA is claiming authority, but where exactly does this authority originate?

When I think back to my neighborhood, I had restrictions but it didn't have a HOA. It did lay out directions in case I wanted to form one but that was it. The corporation claiming to be a HOA was really a neighboring HOA that had a kind of a handshake deal with the developer that gave them authority over any neighborhood with similar sounding restrictions. You can imagine how that played out. When I reviewed my documents it made no mention of this organization yet they were threatening legal action. When they attempted to rewrite the restrictions they even wrote themselves into authority over everyone!

Because of how these things could progress is why I recommend consulting an attorney first. They may know some weird law that permits such a thing in Tennessee.

Thank you for recognizing our firm.

There are multiple issues here. First, Declarations of Covenants, Conditions, and Restrictions, generally, are not attached to a deed. Yes, you can put a restriction in a deed, but those are not related to an HOA. A deed, usually but not always, will say that it conveys title subject to certain matters of record. Those matters should reference a set of CCRs. That is your first clue that there is an HOA. But, a deed usually has an out stating that the conveyance is also subject to "all matters of record".

In Tennessee, there is no general HOA Act. A mandatory HOA is governed by a Tennessee non-profit corporation (generally, I've seen a few oddballs), and as such the Tennessee Non-Profit Corporation Act applies. In addition, the corporation is governed by its Charter and Bylaws.

The use of the property is governed by the CCRs, which are administered by the HOA. There is a difference between CCRs and Protective Covenants. Protective Covenants are restrictions on square footage, pets, nuisances, etc., without establishing an HOA, usually Protective Covenants are contained in CCRs. CCRs work in tandem with an HOA, usually because there is common area involved. The HOA owns the common area (for liability purposes). The CCRs provide for assessments, lien rights, and usually architectural covenants.

A neighborhood association (think a neighborhood watch) can be part of an HOA, it can also be voluntary.

Unless CCRs exist at the time of the development of the Association (i.e., the developer records the CCRs with the plat), it is hard to create a mandatory HOA (I've done it, but it is hard). Think about it, you are ceding rights over property. To do so requires the approval of all property owners. So, if a neighborhood has no mandatory HOA, a subset of neighbors cannot subsequently create one that governs all the property. Thus, you end up with a "swiss cheese" effect. But if the developer creates the HOA and records CCRs, then the CCRs impact all property encumbered by the CCRs. Once the property is encumbered by CCRs then their provisions may be amended as provided by the CCRs.

In this instance, if there was no mandatory HOA to begin with one can be created, but it would only apply to the lots that opt into it by recording a joinder. Once those lots have opted in, they are encumbered. Generally, I do not recommend this type of development as it allows lot owners who are not members to free ride on the goodwill of those that are members.

Anyway, that is a postage stamp analysis.

Wayne M4Tenn : Thank you also. Good advice travels far, including to way up here.

Wayne, would you mind commenting on "Tennessee - Which Rules: Warranty Deed or MDCCR?" Thanks for any clarification you may offer.