Legal Translation Needed

Started by DeannaB • 10 replies • 1156 views

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DeannaB (Wisconsin)
Posts: 21

Posted:

In order to proceed with out ARC vote to amend the rules we need to clear up some vague language.

I have consulted with my attorney, however am still not 100% that even his is correct in his interpretation.

I know there are some "legal types" in this forum...would you please tell me what exactly is meant by this language (contained in our Subdivision Restrictions).

Thanks!

These restrictions, except those which are the lot owners’ responsibility in perpetuity, may be amended at any time by a majority vote from the Home Owners Association with only one vote per lot or unilaterally by the Declarant until one year after 100% of the lots have been built upon and occupancy permits granted.

MikeF2 (Ohio)
Posts: 5

Posted:

Sounds like the developer or the declarant rules until 100% of all of your development is sold and occupied by the buyers of the homes. This will show on your counties property records. Make sure the deed transfer has been done. Myself I would wait until 100% are sold before anything should be done. With our declarent he had three votes for every house not sold and made it too difficult to try and pass any changes. Check to see if your developer has this type of power over your association.

Believe me it is still hard to get any changes made to the rules and regulations due to the fact that most home owners don't have where they live and how it is governed high on their priority list.

DeannaB (Wisconsin)
Posts: 21

Posted:

The part that states "...or unilaterally by the Declarant.." is not relevant now. We do not have to wait until we are 100% occupied so long as we have a majority of the current lot owners (we are at approx 75-80% now) vote. The Declarant had up until 1 year after 100% of the lots were filled to make changes but has declared himself "too busy and no longer concerned with our position" and won't be a factor in this decision. Again, the document is very poorly worded as your response clearly indicates.

JoeW1 (New York)
Posts: 728

Posted:

My non-legal interpretation is that your cc&r's (that control the common elements) can be amended in two ways: 1) The Developer can unilaterally amend for one year after the last unit has been constructed and a certificate of occupancy has been issued. 2) A majority vote from the residents of the Home Owner's Association, one vote per lot.

JoeW1 (New York)
Posts: 728

Posted:

DeannaB - Have all lots been constructed upon with certs. of occupancy issued, and has one year passed since that time? If not, the "unilaterally by the Declarant..." is entirely relevant. You may be able to get away with what you wish to accomplish but you run the risk of it being challenged on technicality, regardless as to majority. I don't think the document is poorly worded at all.

RogerB (Colorado)
Posts: 5,067

Posted:

Deanna, please clarify what you mean by "proceed with out ARC vote to amend the rules". Are you referring to guidelines for your Architectural Review Committee? If so, I would change to the phrase in quotes: ... majority vote "of those homeowners representing a quorum who chose to vote with" one vote per lot or ...

DeannaB (Wisconsin)
Posts: 21

Posted:

We can't change the Subdivision Restrictions so we must work with or around them. The basic question is do we need a majority vote (meaning the majority must vote) or do we need a majority AFFIRMATIVE vote (meaning more than 1/2 must agree to a change for it to go into effect).

I know that at first glance this seems to be one in the same. But if you say that we have 100 lots and we need 51 of them to vote...then the majority becomes 26 to make a change. If we say that we need the majority to vote affirmatively then you say that if 51 vote we'll need ALL of them to vote Yes to effect change.

RogerB (Colorado)
Posts: 5,067

Posted:

Deanna, by Subdivision Restrictions I now think you are referring to the Declaration of CC&Rs and not the ARC. In that case you need approval of a majority of all owners (51 units) to amend the CC&Rs. You are correct - the wording is not sufficient; it needs to be more carefully written to clarify exactly what is needed.

DeannaB (Wisconsin)
Posts: 21

Posted:

Please understand there will be no re-writing as the Declarant is out of the loop. We are stuck with what we have. We need to know how to interpret it.

So, do we need a majority of votes? Or a majority of affirmative votes?

TracyT (Maryland)
Posts: 228

Posted:

Hi Deanna,

You need a majority of affirmative votes.

Actually, a "majority" is a manageble number so you should be sure to clarify any and all unclear requirements. Some of us are "stuck" with poorly written documents that require 90% affirmative votes to change. But I was able to get a majority of yes votes, by my self, in a single weekend last year to change our guideline document.

Good luck.

GloriaM (North Carolina)
Posts: 829

Posted:

Quote:

Posted By DeannaB on 07/02/2007 7:38 AM
In order to proceed with out ARC vote to amend the rules we need to clear up some vague language.

I have consulted with my attorney, however am still not 100% that even his is correct in his interpretation.

I know there are some "legal types" in this forum...would you please tell me what exactly is meant by this language (contained in our Subdivision Restrictions).

Thanks!

These restrictions, except those which are the lot owners’ responsibility in perpetuity, may be amended at any time by a majority vote from the Home Owners Association with only one vote per lot or unilaterally by the Declarant until one year after 100% of the lots have been built upon and occupancy permits granted.

IMO it says that the Lot Owners may amend the restrictions of a majority of the members, however each lot shall have/cast 1-vote per lot.

The part of the Developer is clear.

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