Creating a Mandatory HOA by ammending Covenants.

Can the covenants be amended to create a mandatory HOA with less than 100% agreement?

Our subdivision has a set of covenants, however they don't mention an HOA, assessments, or payments of any kind. We don't have any common property. The attorney tells us that we are not a mandatory HOA.

We can amend the covenants with a majority (less than 100%) vote. However, some of the home owners' want to include language that would create a mandatory HOA, with mandatory payment of assessments.

What can and can't be included in amended covenants?

Can the covenants be amended to create a mandatory HOA with less than 100% agreement?

We have some very nice entrance decorations. They are owned by four individual lot owners, two lots at each of two entrances. The present voluntary association collects contributions and hires a vendor to maintain them.

Well, it's nice to maintain the entrance monuments.

However, worst case, as you pointed out, they are owned by others.
Therefore,the responsibility ultimately falls on the owner to maintain.

Not quite the same. I agreed to the covenants. The covenants can be changed to add restrictions concerning such things as lawn art. What else can they do?

Thanks to all responders. I think that 100% is the requirement. Does anyone have anything to backup the claim, other than it reasonably seems to be true?

If the entrance decorations are owned by the individual lot owners you will then force those owners to give the property to the association?

Gary, In Colorado we manage two associations which are in the process of converting from voluntary to manditory. This was accomplished by approval of the percentage of homeowners required to approve the amendment as stated in the current CC&Rs. after the amended Covenants are filed with the County this provides for the property having a manditory assessment upon title transfer. The result is that new Buyers pay an assessment against the property and being Permanent members of the HOA; meanwhile current homeowners may voluntarily join the HOA by paying dues.

You have it backwards. You don't need to look for justification that 100% agreement is necessary. You need justification for imposing mandatory obligations with less than 100% agreement, on those who did not agree.

This is very unlikely in the US. We have no problem insisting on adherence to rules that we have agreed to (by buying property burdened by a mandatory HOA). But obligations we have not agreed to- this can only be done by the government under rather limited circumstances.

Because any such document will need to be attached to everyone's Property Title. You cannot attach a mandatory HOA to another person's Property Title without their expressed permission. This is why many states require a developer to already have an HOA in place PRIOR to selling any homes to consumers.

If you did not have my permission and attached any mandatory document to my Property Title ... I could have my Title Insurance sue you!!! Because my Title Insurance Company will have done a prior Title search before I previously purchased and will have noted in my insurance documents that there is no mandatory HOA attached.

Is that enough backup for you?

Almost! In this case, there is already a mandatory document filed with the title. It's the original covenants. They include the conditions that they can be amended with 51% agreement. The argument is, that since they can be amended to add or remove restrictions, then let's add the condition that assessments and membership is mandatory. What is my defense against such an argument?

Considering that most of the responders to this thread agree that this is a poor argument, and that 100% agreement is necessary, then I will encourage the attorney to advise against filing them with anything less than 100% acceptance.

Thanks to all everyone for your help.

Potentially you are confusing "Land Use Restriction" Covenants with "Home Owner Association" Covenants.

Does the coventants filed with the title authorize the creation of a Home Owner's Association? Both sets of documents can be amended ... however, you cannot attach documents to someone's Property Title after they have purchased and REQUIRE them to pay $$$ ... when that was not fully disclosed to them BEFORE they purchased their property. I'm not an attorney, but that would be starting to cross the line and engaging in real estate fraud.

That is why if you want to make mandatory after people have already received disclosures and purchased ... you need to obtain 100% agreement.

Here is an article which might help you understand: http://condohoalaw.blogspot.com/2013/12/mandatory-versus-voluntary-are-you.html

Another example would be someone who told their realtor they do not want and will not purchase in an HOA. The realtor finds and they purchase a home in your subdivision which has been advertised and sold as not being within an HOA and which the buyer wanted because they see that many people are asking the same and feel the property would resell more quickly when they again get transferred. The point is ... they purchased under certain expectations and what was fully disclosed to them ... therefore, they have their right to resell under the same expectations UNLESS they agree in writing otherwise.

I agree with JanetB2 who stated "You cannot change my Property Title to be anything different in the future without my expressed permission."

However, that is not the case for the two associations we manage which are in the process of coverting from Voluntary to Manditory. In these two associations the Covenants were amended (by 2/3 approval of all homeowners). After the amended Covenants were filed with the County, whenever a title transfer occurs the Buyer (new owner) has a manditory property ASSESSMENT. The owners of properties owned prior to the time of amending the Covenants may voluntarily join the HOA by paying yearly personal DUES. For each association the amended Covenants were approved by and drafted by the association's highly competent HOA attorney.

In case an ignorant realtor does not advise a Buyer that they will have a manditory assessment upon purchase from a Seller who is Voluntary, or if the title company does not make the Buyer aware of this, either or both may be liable. As the management company, we provide a status letter to the title company prior to each title transfer which clearly and in bold type makes them aware of this conversion. We also provide all of the Governing Documents to the Seller or their Agent which they are required by CCIOA to provide to a potential Buyer.

Tim, That sounds like excellent advice. Thanks.

That is why stated I would fight if happened to me. I would first send notice for the illegally filed document to be removed from my property title per:

38-35-109. Instrument may be recorded - validity of unrecorded instruments - liability for fraudulent documents

(3) Any person who offers to have recorded or filed in the office of the county clerk and recorder any document purporting to convey, encumber, create a lien against, or otherwise affect the title to real property, knowing or having a reason to know that such document is forged or groundless, contains a material misstatement or false claim, or is otherwise invalid, shall be liable to the owner of such real property for the sum of not less than one thousand dollars or for actual damages caused thereby, whichever is greater, together with reasonable attorney fees. Any grantee or other person purportedly benefited by a recorded document that purports to convey, encumber, create a lien against, or otherwise affect the title to real property and is forged or groundless, contains a material misstatement or false claim, or is otherwise invalid who willfully refuses to release such document of record upon request of the owner of the real property affected shall be liable to such owner for the damages and attorney fees provided for in this subsection (3).

Then if they "willfully refuse" to remove the document ... I would file charges with my local DA and the State AG for a number of items such as Theft of Contract and:

18-5-114. Offering a false instrument for recording

(1) A person commits offering a false instrument for recording in the first degree if, knowing that a written instrument relating to or affecting real or personal property or directly affecting contractual relationships contains a material false statement or material false information, and with intent to defraud, he presents or offers it to a public office or a public employee, with the knowledge or belief that it will be registered, filed, or recorded or become a part of the records of that public office or public employee.

Then I would have my attorney file a lawsuit against every individual and entity who participated in falsely "encumbering" my property. And why do I think I have a high probability of winning? Because these are items we could have gone after our past developers for also and because they engaged in similar illegal activity in more than one instance could have also included Criminal Racketeering against them. I also had discussed this with the AG office, but in our situation because our attorney filed a document behind our backs it limited criminal charge recourse ... we only had civil option.

The definition of a "Common Interest Community" under our State Law notes:

38-33.3-103. Definitions

(8) "Common interest community" means real estate described in a declaration with respect to which a person, by virtue of such person's ownership of a unit, is obligated to pay for real estate taxes, insurance premiums, maintenance, or improvement of other real estate described in a declaration. Ownership of a unit does not include holding a leasehold interest in a unit of less than forty years, including renewal options. The period of the leasehold interest, including renewal options, is measured from the date the initial term commences.

Do those communities have OTHER real estate described in the Declaration for which they are "obligated" to pay for items such as maintenance and improvements? Simply wanting to collect money without meeting certain requirements does not make them Common Interest Communities.

Furthermore:

38-33.3-301. Organization of unit owners' association

A unit owners' association shall be organized no later than the date the first unit in the common interest community is conveyed to a purchaser. The membership ... et al.

It does not state "SHALL be organized after I purchased my property without my EXPRESSED permission" by a pack of yahoo's who think they have any such right!!!

You seem to think that the covenants must remain exactly as they were when you purchased, unless you agree to the change. Wrong. Welcome to the dark side of HOA living! Where others can/will dictate how you live!!

With the proper percentage of affirmative votes, that is outlined in the CC&R's, anything can be changed!!

NOPE ... Covenants can be changed. However, there is a BIG difference between VOLUNTARY and MANDATORY. Or in my state between "PRIVATE Land Use Contract" and "MANDATORY Common Interest Community". RIGHT!!! Welcome to the bright side of HOA living where I know my rights and where others who might choose to violate the laws CANNOT dictate how I live!!! Been there and done that .

If the amendment states that "all current owners as well as all owners going forward" shall have the assessment, and it passes and is files as such, would that change it? Or is it State Law that prohibits the current owners from being assessed?

There is one case I am aware of: http://caselaw.findlaw.com/co-supreme-court/1183127.html

However, the HOA won because the Plat showed that there was "Common Area" which the HOA was required to maintain. Therefore, while initially was voluntary they could Amend to make it mandatory in order to maintain the Common Area Property. It went back and forth with local court siding with HOA, then next level Court siding with Owner, then finally the Colorado Supreme Court siding with the HOA. Again, was mainly because they had Common Area Property falling under the definition of Colorado Common Interest Community.

How do you know if your HOA is Mandatory or voluntary. While I have the covenant and by-laws they are not followed by the volunteer board, nor are they listed anywhere in the State of TN as an HOA nor registered in any way in our County offices.

It's going to depend on the language within the covenants.


Compliance with the governing documents are not relevant to your question on determine if membership is or isn't mandatory.


Not sure if you are using "they" to mean the covenants or the Association. However, I expect you mean the Association.

TN does not have an HOA statute (they do have statutes for condominiums).
Hence, there is no statute (I know of) that requires the Association to incorporate or register with the County or State.

Without any requirement in the statutes, an Association can make their own determination if they desire to incorporate or not. If they are incorporated, they would be registered with the State corporation commission.

See: https://tnbear.tn.gov/Ecommerce/FilingSearch.aspx

Note: even if the Association initially registered, they may not be listed if they failed to file annual reports and were administratively dissolved by the State.

If there is nothing in the covenants concerning the existence of a HOA, and there is nothing in the covenants that requirements the lot owners to pay for anything, then I would say that you don't have an HOA!
Therefore, the By-Laws are immaterial.

In our case we have an organization (group of homeowners) that do HOA sorts of things, but don't have the authority to make assessments or enforce the covenants.

However, you, as a homeowner can bring court action against any covenant violator. If you win, the courts may have the defendant pay your attorney fees and similar expenses. Others in the neighborhood may be willing to join the action or at least share the cost.

Consider how the HOA would react to a letter such as this.

To: Xxx Homeowners Association
On behalf of my client, a long time Xxx homeowner, I need documentation, acceptable to a court of law, supporting the claim that payment of Xxx HOA fees are mandatory.
Lacking that documentation, we plan to sue to recover all past payments. In addition we plan to bring forth criminal charges of fraud against the Xxx Home Owners Association.
Respectfully
xxx, Attorney at Law

Good luck, GaryM15