Can Developer change ByLaws and make them un-revokable?

Started by TomH15 • 7 replies • 1116 views

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TomH15 (Kansas)
Posts: 1

Posted:

We are about one year from turnover (when all the developer's lots are sold).

During this period, we have an advisory council, preparing to undergo this future transition.
Recently, the Developer notified us that another separate community he is developing would be granted access to our HOA pools at an annual cost of about 50% of our overall HOA dues.
The Developer unilaterally amended the bylaws and has inserted language indicting that this benefit to a proximate, but non-HOA community cannot be revoked.
Searching Kansas RE law for guidance, but besides being really poor form, can anyone comment on the ability of the developer to obligate our future, turned-over, HOA to this deal made with the nearby community?

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By TomH15 on 07/05/2017 8:09 PM
We are about one year from turnover (when all the developer's lots are sold).

During this period, we have an advisory council, preparing to undergo this future transition.
Recently, the Developer notified us that another separate community he is developing would be granted access to our HOA pools at an annual cost of about 50% of our overall HOA dues.
The Developer unilaterally amended the bylaws and has inserted language indicting that this benefit to a proximate, but non-HOA community cannot be revoked.
Searching Kansas RE law for guidance, but besides being really poor form, can anyone comment on the ability of the developer to obligate our future, turned-over, HOA to this deal made with the nearby community?

If I were in your shoes I would discuss with an attorney. Keep in mind that some attorneys will offer a "free short time consultation". Before you ask for that consultation be sure to review your governing documents and State Laws to determine your questions and legality of issue. State Laws vary and in my State the Developer must "reserve" the right to add more property to an HOA and be disclosed "prior to other owners purchase". Essentially you cannot "reel" in a Consumer to purchase property and then later essentially "defraud'" both the Owner and their Secured Creditor after they have agreed to what was stated at time of purchase. Again, this will depend on your governing documents and State Laws.

DouglasM6 (Arizona)
Posts: 724

Posted:

You definitely need legal advice and not opinion on this one. Good luck. Please let us know how this all works out.

KerryL1 (California)
Posts: 14,550

Posted:

Agree with others. BUT, Tom, are you sure it's in the Bylaws??? Usually use privileges are in the CC&Rs (aka: Declaration; covenants; Deed Restrictions)

KerryL1 (California)
Posts: 14,550

Posted:

Also, tom, the Bylaws may not conflict with your CC&Rs, which is a higher level documents and trumps your bylaws.

DouglasK1 (Florida)
Posts: 2,046

Posted:

Quote:

Posted By DouglasM6 on 07/06/2017 10:02 AM
You definitely need legal advice and not opinion on this one. Good luck. Please let us know how this all works out.

Keep in mind that legal advice is an "opinion", just one hopefully more informed than internet advice. Since nobody can predict with great accuracy what a judge or jury would decide in a given case you would still need to make a decision based on that opinion. The decision is do you accept the developer's change or do you fight it in court. Keep in mind that the latter will cost.

Escaped former treasurer and director of a self managed association.

KerryL1 (California)
Posts: 14,550

Posted:

Bylaws, tom, usually indicate the HOA is a corporation. In CA, we're nonprofit mutual benefit corporations. We can find the law about our kind of corporation within CA Corporations Codes.. You may have something you can look at in KS that' similar.

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