Technical Corrections and Revisions

Started by FrankD10 • 10 replies • 892 views

💬 Join us to post & get advice from 50,000 HOA & Condo leaders.

⚡ Takes 30 seconds

Already a member? Log in

FrankD10 (Massachusetts)
Posts: 4

Posted:

I am the Declarant of my Condominium Association and the Master Deed provides that
I am allowed to amend the Master Deed for the purpose of making corrections or
revisions of a technical nature. I want to understand what constitutes a technical
correction because it recently came to my attention that a particular restriction
had originally been specified within the Master Deed; however, the restriction
conflicts and has always conflicted with local ordinances. The Master Deed also
indicates that when in conflict with the law, the law controls. As a result, the
restriction has always been unenforceable.

I wish to remove this particular restriction from the Master Deed (or rewrite it to
be compliant with the law) in order to clarify the Restrictions section of the Master
Deed and to avoid future misinterpretation.

Does making an amendment in order to eliminate unenforceable rules or correct a
provision that is either ambiguous, defective, or inconsistent with the law or
other governing documents fall within the scope of making technical corrections?

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By FrankD10 on 09/26/2017 12:14 AM
I am the Declarant of my Condominium Association and the Master Deed provides that
I am allowed to amend the Master Deed for the purpose of making corrections or
revisions of a technical nature. I want to understand what constitutes a technical
correction because it recently came to my attention that a particular restriction
had originally been specified within the Master Deed; however, the restriction
conflicts and has always conflicted with local ordinances. The Master Deed also
indicates that when in conflict with the law, the law controls. As a result, the
restriction has always been unenforceable.

I wish to remove this particular restriction from the Master Deed (or rewrite it to
be compliant with the law) in order to clarify the Restrictions section of the Master
Deed and to avoid future misinterpretation.

Does making an amendment in order to eliminate unenforceable rules or correct a
provision that is either ambiguous, defective, or inconsistent with the law or
other governing documents fall within the scope of making technical corrections?

Potentially that is a question to verify with your attorney because various State laws are different. Because if as you stated the State Law supercedes and the restriction is not enforceable, I personally would not worry about changing and instead let the future owners and HOA make the change down the road. Potentially in the future the HOA will want to amend and remove your Declarant items in the future. So, the question would be ... "If the item is null and void anyway under your State Law ... why do you want to spend money to amend the CCR's? Keep in mind without knowing what you want to remove (you only calling it a "particular restriction") ... WE do not know if said "particular restriction" conflicts with your State Statutes.

JanetB2 (Colorado)
Posts: 4,219

Posted:

I stated above because usually a correction you have asked about would be a typo error in the CCR's and not to correct a future law change. The laws are always changing. Most of us know the Law can potentially supercede our CCR's.

FrankD10 (Massachusetts)
Posts: 4

Posted:

> you only calling it a "particular restriction"
To clarify, the restriction has to do with parking; specifically within the driveway of the common area: the Master Deed indicates
some assigned spaces, but otherwise prohibits parking within the driveway. The town ordinances require a minimum number of parking
spaces in direct conflict with the driveway prohibitions (because there is insufficient assigned parking). The ordinances regarding
the number of parking spaces have always been the same since the association was created. Hence, the CCR restriction was an oversight
that was never enforceable.

> If the item is null and void anyway under your State Law ... why do you want to spend money to amend the CCR's?
Fair point. The reality has been that the restriction has never been followed or even mentioned and as far as I can tell,
neither of the unit owners was aware it even appeared in the CCRs. The owners simply parked as they always did (which
happened to be in accordance with town law). There were never any complaints or issues regarding parking.

However, the problem started when I went to market my unit for sale and the other owner insisted upon the parking restriction
which essentially meant for me that my unit could park fewer cars, thereby affecting the marketability of the unit. I do not
know when it was that he became aware of the restriction within the CCRs, but my impression is that it coincided with the
marketing of my property. It's also not known what his purpose is other than to possibly gain leverage for something.

I responded by researching the matter myself, discovering that the town rules imply that the restriction on driveway parking
could never have been enforced (due to the minimum number of required parking spaces), receiving verification from the town,
and presenting these facts to the other owner. He refused to acknowledge the facts.

The bottom line is that I want to amend an unenforceable restriction on parking in order to give clarity to a prospective
buyer. The other owner will not cooperate, so I'm trying to find out if such a corrective amendment is within my rights as
Declarant to make technical corrections. Otherwise, the matter may have to go to arbitration, a route I would rather not
take if I can simply make a corrective amendment.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Frank,

I don't think that what you want to do is a technical correction.

To be safe, you should go through the process of amending the document.

To be safer, you should ask your attorney.

FrankD10 (Massachusetts)
Posts: 4

Posted:

I wish I could get a straight answer from an attorney as to the scope of technical corrections.
Around here, attorneys expect several thousand dollars in retainer just to review your association
documents before they will even render an opinion. From a cost benefit point of view, I'm better
off going straight to arbitration and asking that the Master Deed be amended to comply with the law.

Ironically, it was attorneys using boilerplate condominium documents which resulted in the
oversight restriction which conflicts with the town law.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Well, you could change it and see if someone is willing to take the issue through the courts.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By FrankD10 on 09/26/2017 2:40 AM
I wish I could get a straight answer from an attorney as to the scope of technical corrections.
Around here, attorneys expect several thousand dollars in retainer just to review your association
documents before they will even render an opinion. From a cost benefit point of view, I'm better
off going straight to arbitration and asking that the Master Deed be amended to comply with the law.

Potentially the issue is your CCR's in some instances can "supercede" local ordinances and only State Ordinances if said ordinance gives reference to the CCR's. For example many Cities will note 4 dogs allowed; however, the HOA can State 2 dogs and the HOA is supreme. The only time you potentially cannot supercede is if the HOA does not own the property ... that example would be if the HOA is regulating ""street parking" when they do not pay HOA assessments to maintain and improve the streets as that is property owned and maintained by the City. Some states such as NV have enacted State Laws to prevent HOA's from regulating property they do not own because HOA's were trying to foreclose homes based on regulating non-hoa property.

Ironically, it was attorneys using boilerplate condominium documents which resulted in the
oversight restriction which conflicts with the town law. LOL ... that is usually the situation. You might let your fellow developers know, so hopefully the boilerplate may change in the future

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By TimB4 on 09/26/2017 3:17 AM
Well, you could change it and see if someone is willing to take the issue through the courts.

Tim has a point and that is an option. If someone threatens to take to court you could point out the local statute is the reason why you made the change and potentially they will back off. If someone did take to court you could potentially point out the local ordinance violation as your reason and there is a probability the Court would side with you on the change. I personally myself would not challenge such a change in the CCR's by a developer if they were wanting to follow my local laws.

FrankD10 (Massachusetts)
Posts: 4

Posted:

I have considered just going ahead with the corrective amendment and seeing if it's challenged.
It's reassuring to get validation from both Tim and Janet that to clarify or correct the CCRs
where they conflict with the law might be a reasonable thing for a Declarant to do.

I have a mediation session with the other owner in a few weeks. This would be a good time to
inform him that we can either collaborate on an amendment or I'll have to make the corrections
independently as Declarant. How this is received may be telling of whether or not he will
ultimately challenge the change.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Good luck on your Mediation and be sure to let us know how it turns out. Your info can help others in similar situation in the future.

🎯 You've read this entire discussion

Join the conversation with 50,000 HOA & Condo Leaders:

✓ Ask follow-up questions
✓ Share your experience
✓ Get expert advice
✓ Access 350,000 discussions

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in here