AprilW1 (North Carolina)
Posts: 1
Posts: 1
Posted:
Hi everyone,
I am researching the CC&Rs for my HOA. We are in NC and were incorporated in 1998, prior to the NC PCA. While I understand some of the PCA effects our HOA, I am currently looking at how fines can be levied against homeowners in the neighborhood.
The articles of incorporation state the HOA has the powers provided in the CC&Rs. Specifically stated: "The Association shall have such powers as are provided in the Declaration of Covenants, Condition and Restrictions for (neighborhood) as recorded in the (county registry), and as said in Declaration may be amended from time to time."
The CC&Rs give the rights to annual assessments and suspension of voting rights for unpaid assessments. However no mention of fines. The closest thing is in the Use section which states the board may have the required work if maintenance is not done and "the costs thus incurred shall be paid by the owner." Enforcement is states ad "the right to enforce by proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens, and charges now or hereafter imposed by this declaration.
Now as I understand the NC supreme court ruled in 2003 (after the PCA was in effect) that HOAs do not automatically have the right to impose fines just because the PCA says the "may" be granted said power. It goes on to say in paragraph 46 of the ruling "Similarly, our holding does not forbid defendant (HOA), or any other homeowners association formed prior to 1999, from taking advantage of the statutory powers created under the PCA, provided the legal authority for the exercise of those powers is established. Where the declaration of a homeowners association prior to 1999 is silent as to whether an association has the power to fine its own members, but provides, as the instant declaration does, for an amendment of the declaration provisions, the homeowners association may certainly obtain the power to fine its members as described under NCGS 47F-3-102(12) by following the prescribed amendment procedure and by adding the appropriate language to the declaration."
The procedure to add any amendment requires an accent vote of 67% of the neighborhood members per the Articles of incorporation. This has not been done or if it has, nothing has been filed. The last legal declaration was in 2-98 from my understanding.
So my question is this. With that ruling, does the board have the right to impose fines without adding an amendment to the Declaration? Was this NC Supreme Court ruling ever overturned, by judgement or law?
Here is the link to the court case if you need further clarification.
http://www.ccfj.net/courtdecNCnofines.html
Thank you
I am researching the CC&Rs for my HOA. We are in NC and were incorporated in 1998, prior to the NC PCA. While I understand some of the PCA effects our HOA, I am currently looking at how fines can be levied against homeowners in the neighborhood.
The articles of incorporation state the HOA has the powers provided in the CC&Rs. Specifically stated: "The Association shall have such powers as are provided in the Declaration of Covenants, Condition and Restrictions for (neighborhood) as recorded in the (county registry), and as said in Declaration may be amended from time to time."
The CC&Rs give the rights to annual assessments and suspension of voting rights for unpaid assessments. However no mention of fines. The closest thing is in the Use section which states the board may have the required work if maintenance is not done and "the costs thus incurred shall be paid by the owner." Enforcement is states ad "the right to enforce by proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens, and charges now or hereafter imposed by this declaration.
Now as I understand the NC supreme court ruled in 2003 (after the PCA was in effect) that HOAs do not automatically have the right to impose fines just because the PCA says the "may" be granted said power. It goes on to say in paragraph 46 of the ruling "Similarly, our holding does not forbid defendant (HOA), or any other homeowners association formed prior to 1999, from taking advantage of the statutory powers created under the PCA, provided the legal authority for the exercise of those powers is established. Where the declaration of a homeowners association prior to 1999 is silent as to whether an association has the power to fine its own members, but provides, as the instant declaration does, for an amendment of the declaration provisions, the homeowners association may certainly obtain the power to fine its members as described under NCGS 47F-3-102(12) by following the prescribed amendment procedure and by adding the appropriate language to the declaration."
The procedure to add any amendment requires an accent vote of 67% of the neighborhood members per the Articles of incorporation. This has not been done or if it has, nothing has been filed. The last legal declaration was in 2-98 from my understanding.
So my question is this. With that ruling, does the board have the right to impose fines without adding an amendment to the Declaration? Was this NC Supreme Court ruling ever overturned, by judgement or law?
Here is the link to the court case if you need further clarification.
http://www.ccfj.net/courtdecNCnofines.html
Thank you