Amending Deed of Declaration

Started by DanP • 15 replies • 1212 views

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DanP (Virginia)
Posts: 7

Posted:

General Provisions, Section 2 Amendment
At any time within 15 years from date hereof, the covenants and restrictions of this Declaration may be amended by an instrument signed by not less than 90% of each class of Members. They may be amended thereafter by an instrument signed by not less than 75% of the Members. Written notice of any proposed amendment shall be sent to every Owner at least 60 days in advance of any action taken.

Question 1- Does this mean that only the covenant and restrictions can be changed using this process?

Article II Membership

Every person or entity who is or becomes a record owner of a fee or undivided fee interest in any Lot which is subjected to this Declaration, including contract sellers, shall be entitled to become a member of the Association. The foregoing does not intend to include persons or entities who hold an interest merely as a security for the performance of an obligation, nor trustees under any instrument securing such an obligation. No Lot shall represent more than one membership.

Question 2- This passage simply asserts the right of owners to become a member, and does not exclude anyone from membership. Is that a covenant or restriction? Can this passage be amended?

GenoS (Florida)
Posts: 4,276

Posted:

I think the answer to your 1st question is yes, it only applies to the covenants. The bylaws and articles of incorporation should contain their own amendatory requirements & procedures.

The 2nd question is a good one. I'd argue that the language that entitles one to become a member should be changed (via an amendment). Are you in a mandatory HOA? In my state, a homeowner IS a member, period, by virtue of them having bought a home in a community governed by a mandatory HOA. The language you showed might be appropriate for a voluntary association.

DanP (Virginia)
Posts: 7

Posted:

This is in the document titled Declaration of Covenants, Conditions, and Restrictions.

Someone asserts that since the amendment process specifies covenants and restrictions it disallows amendment of any other portion of the declaration except by unanimous consent.

Since membership is as defined is not a covenant or condition then that language cannot be changed, effectively preventing the HOA from becoming mandatory.

Just trying to get input to gauge the truth of this statement.

DanP (Virginia)
Posts: 7

Posted:

I guess the most productive question would be question would be:
If two parties faced off on opposite sides of can amend/can't amend with equally competent representation in a state where "Valid covenants restricting the free use of land, although widely used, are not favored and must be strictly construed and the burden is on the party seeking to enforce them to demonstrate that they are applicable to the acts of which he complains. Riordan v. Hale, 215 Va. 638, 641, 212 S.E.2d 65, 67 (1975); Traylor v. Halloway, 206 Va. 257, 259, 142 S.E.2d 521, 522-23 (1965). Substantial doubt or ambiguity is to be resolved against the restrictions and in favor of the free use of property., which side would likely prevail.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Great legal question.

Send it to a law school.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Dan

Stop playing lawyer. If important enough to you, go see a lawyer.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Dan,

It appears to me that you have some legal background based on the question you asked.

Since I do not have any legal training, I will not even attempt to give an opinion on the question asked because it sounds like you need someone with legal training to give you an informed answer.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By DanP on 09/21/2017 12:20 PM
General Provisions, Section 2 Amendment
At any time within 15 years from date hereof, the covenants and restrictions of this Declaration may be amended by an instrument signed by not less than 90% of each class of Members. They may be amended thereafter by an instrument signed by not less than 75% of the Members. Written notice of any proposed amendment shall be sent to every Owner at least 60 days in advance of any action taken.

LOL ... Your CCR's cannot violate your State Law ... which states per: https://vacode.org/55-515.1/

D. A declaration may be amended by a two-thirds vote of the owners. This subsection may be applied to an association subject to a declaration recorded prior to July 1, 1999, if the declaration is silent on how it may be amended or upon the amendment of that declaration in accordance with its requirements.

LOL ... Many old CCR's will state potentially higher percentages, but most states now have laws which reduce those to now either "two thirds" or in many others to 67%.

Question 1- Does this mean that only the covenant and restrictions can be changed using this process? Yes it is CCR's ... if you are asking about other documents you need to clarify.

Article II Membership

Every person or entity who is or becomes a record owner of a fee or undivided fee interest in any Lot which is subjected to this Declaration, including contract sellers, shall be entitled to become a member of the Association. The foregoing does not intend to include persons or entities who hold an interest merely as a security for the performance of an obligation, nor trustees under any instrument securing such an obligation. No Lot shall represent more than one membership.

Question 2- This passage simply asserts the right of owners to become a member, and does not exclude anyone from membership. Is that a covenant or restriction? Can this passage be amended?

Become a member??? Every owner who has the CCR's attached to (via their County Records) and affecting thieir property is potentially a member. The CCR's (Declaration of Covenants, Conditions, & Restrictions is potentially BOTH a Covenant and Restriction. Yes ... Can be amended by proper vote of the HOA.

JeffT2 (Iowa)
Posts: 880

Posted:

Quote:

Posted By DanP on 09/21/2017 2:51 PM
Since membership is as defined is not a covenant or condition then that language cannot be changed, effectively preventing the HOA from becoming mandatory.

They are all covenants or parts of covenants, and can be amended, as long as the amendment is lawful.

If you want to amend membership to go from voluntary to mandatory, it will require 100% approval from all owners, including those who are entitled to be members, but are not currently members. You can't force mandatory membership by less than 100% approval.

LoriF3 (South Carolina)
Posts: 240

Posted:

Hope I can piggy back on here my question is similar :

I came across this

The covenants and restrictions of this Declaration shall bind only the land specifically prescribed herein ,The Declaration may be amended prior to 10/1/2017by an instrument signed by the owners of not less than 90% of the lots and by the declarant so long as the declaranat still owns any lots and thereafter by an instrument signed by the owners of not less than 75% and any amendments must be properly recorded .

So am reading this to mean that the declarant ( is the builder or is this the home owner and if the home owner the original ones at the time of this writing or those who have now moved in here as home owners
And the declarant if its the builder he owns 1 lot still not including the common areas

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By LoriF3 on 09/24/2017 8:40 AM
Hope I can piggy back on here my question is similar :

I came across this

The covenants and restrictions of this Declaration shall bind only the land specifically prescribed herein ,The Declaration may be amended prior to 10/1/2017by an instrument signed by the owners of not less than 90% of the lots and by the declarant so long as the declaranat still owns any lots and thereafter by an instrument signed by the owners of not less than 75% and any amendments must be properly recorded .

So am reading this to mean that the declarant ( is the builder or is this the home owner and if the home owner the original ones at the time of this writing or those who have now moved in here as home owners
And the declarant if its the builder he owns 1 lot still not including the common areas

Potentially prior to 10/01/2017 you will need the Declarant (a.k.a. Builder to also agree. IF this section of your CCR's do no violate your State Statutes.

DanP (Virginia)
Posts: 7

Posted:

The Virginia Property Owners Act, ie State Law, does not apply since the association is 1) voluntary, and 2) has no expressed responsibility to maintain the common grounds. It does not meet the definition of Homeowners Association under the act. So, whatever is stated in the governing documents is what is legally binding. I'm not asking about the other documents. I'm asking about the CCR, and whether the definitions and conditions can be changed by 75% since they seem to be excluded from the provision regarding amendment. Covenents, Restrictions? Yes. Definitions, Conditions? I don't know, but someone thinks not.

DanP (Virginia)
Posts: 7

Posted:

as in, "expressio unius est exclusio alterius
a rule of construction, applying both to statute and legal writings, that states that one thing having been mentioned the other is excluded. Thus, following this rule, ‘no dogs allowed’ means that lions are allowed but guide dogs are excluded."

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By DanP on 09/27/2017 11:28 AM
The Virginia Property Owners Act, ie State Law, does not apply since the association is 1) voluntary, and 2) has no expressed responsibility to maintain the common grounds. It does not meet the definition of Homeowners Association under the act. So, whatever is stated in the governing documents is what is legally binding. I'm not asking about the other documents. I'm asking about the CCR, and whether the definitions and conditions can be changed by 75% since they seem to be excluded from the provision regarding amendment. Covenents, Restrictions? Yes. Definitions, Conditions? I don't know, but someone thinks not.

Potentially if you are voluntary then you need to follow your agreed SIGNED CONTRACT for those who "volunteered" and signed. All others do not need to agree to anything ... LOL ... because they are not bound by any contract. You other option if the VOLUNTEER HOA is Incorporated would be to review your Non-Profit Corporation statutes to see if they dictate a different percentage for amending.

DanP (Virginia)
Posts: 7

Posted:

all others must abide by languge within the Declaration because it runs with the land and is independent of membership. The declaration explicity allows for a percentage of members to amend the rules we live by (ie. covenants and restrictions) but it has been contended that by excluding parts of the declaration (definitions, condtions) it would take 100% of property owners to change parts of the declaration that do not speak to what can or can't be done on an individual property owners land.

LoriF3 (South Carolina)
Posts: 240

Posted:

Quote:

Posted By JanetB2 on 09/25/2017 10:28 PM

Potentially prior to 10/01/2017 you will need the Declarant (a.k.a. Builder to also agree. IF this section of your CCR's do no violate your State Statutes.

Thanks I think its looking like we won't be having anything changed by 10/1 if there is anything I would think they would let us know .

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