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Builder/Developer failed to disclose full CC&Rs at escrow?

Started by VicjosS • 37 replies • 2041 views

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VicjosS (California)
Posts: 26
Posted:
Is it common for builders of HOA communities in California to not disclose full facts of the community?
Despite the fact that the David Sterlings act requires the full CC&Rs be disclosed upon escrow.
Though in our community while we received full copies of the bylaws, design guidelines, Agreement, Rules and regulations, and other facts about the house we are buying. Both in a binder full of paper as well as on CD and USB. I was surprised to find that non of these documents we received included the CC&Rs at least the full copy of it.
It wasn't until we received violation notices of CC&Rs which was not mentioned in the documents we did receive and did our homework on. We noticed that we received only amendments to the CC&Rs on paper and the electronic copies did not include them at all. It appears the builder was playing games with buyers in the community as there are many other neighbors on the same boat.

Knowing the CC&Rs are crucially important to buying in an HOA neighborhood as it outlines pretty much the "constitution" of the community, your rights/duties as a homeowner in the association. The procedures the association must take to contact homeowners in the event of changes big and small in the community. So we can keep track at whether the association is following the rules and respecting the rights of homeowners. CC&Rs also contain community rules that are much harder to change than if its just part of the rules and regulations.

In this case do homeowners have any rights against the builder for their willful failure to disclose? What are the consequences for failure to disclose for a developer in CA. We had been having a lot of issue with the association under builder control. As they seems to not care much about following the civil code (i.e giving 30 days notice for changing rules and fifteen days notice if rules passes a vote) and their own CC&Rs when conducting their business. Our CC&Rs the part they failed to give us require mail notice to each individual home. They also seem to be indifferent to issues addressed by homeowners the past two years. Once in a meeting they were even disrepectful enough to say that the meeting is not meant for homeowner commenting. This really got the homeowners made as they never got the 30 day commenting period in the first place, new rule proposals just came as a surprise in that meeting.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
It is looked upon as your responsibility to be informed. Some states the seller is to provide the documents. Otherwise, the CC&R's and Articles of Incorporation are PUBLIC documents. They are available at your local courthouse or online at the state.
Former HOA President
KerryL1 (California)
Posts: 14,550
Posted:
IN CA and many other states, Melissa, as you've been informed previously, HOA sellers must provide the documents well before the close of escrow so the prospective buyer has time to read them.

Your developer still controls your HOA, right, Vicjos? So far as I know whether the Owners control or the developer does, the 30 notice to amend a rule must be followed. You & others who feel they've been wronged should continue to attend board meetings, which must be open to you and ask the hard questions. They also must include an open forum when Owners can ask questions, etc.

Beyond verbal and written complaints, maybe Richard can help.

Your post is hard to read, Vicjos. It would help if you make them much shorter an stick to your question so I & maybe others don't have to struggle to grasp your main points. Do not the legislation is the Davis-Stirling Act. There's an excellent website that might help you called Davis-stirling.com.
VicjosS (California)
Posts: 26
Posted:
Thank you for your response. It appears from the facts I receive the builder is clearly legally wrong in this practice. And it seems willful as there are so many versions of documents(paper, CD, USB) given to the buyers yet all doesn't include that very important document.Its totally unacceptable threaten to fine someone of a CC&R violation they were not disclosed off before buying and not included in any other documents they received. It appears the builder was focused on getting homes sold quickly rather than disclosing the material truth to buyers.

Though what I want to know is what should homeowners do to address the situation? The community is near completion and is going to be turned over to homeowners soon. We don't want the potential liability to be shifted to the homeowners after the handover. The management company and the builder majority board with just two homeowner board members had been operating on a veil of secrecy with many shady practices all two years. The management company seem to act like they are the masters rather than the servants of the association and its board.
And CC&Rs unlike rules and regulations are considerably more difficult to amend even if more than 50% of members disagree with it and put it to a vote.
KerryL1 (California)
Posts: 14,550
Posted:
It sounds like you, Vicjos, and several others who think the developer is in the wrong, should pool your funds and meet with an HOA attorney to get legal advice.

Meantime, what is the text of CC&R that concerns you? Is this all about car-towing??

What is the text of the "missing" CC&Rs? I still have trouble following you.

The developer's management company often does exactly what the developer wants because the developer has a majority on the Board till turnover. In other words, the developer hires the MC in the first place.

Just what are these "shady practices" you're referring to?
RichardP13 (California)
Posts: 3,868
Posted:
In California, if a builder/realtor does not provide full disclosure during a transaction involving a new development, the buyer can walk away, no harm, no foul. This happened to me in 2008 when buying into a new development. The realtor failed to disclose there was a Mello Roos on the property.
KerryL1 (California)
Posts: 14,550
Posted:
But recourse do owners in CA have AFTER escrow closes, Richard?
PaininyourA
Posts: 215
Posted:
for all PRACTICAL purposes - NONE

CAVEAT EMPTOR
KerryL1 (California)
Posts: 14,550
Posted:
It seems to m that since CA sellers are required to provide many such docs prior to the close of escrow, and complete CC&Rs certainly is one of them, there must be some recourse if sellers do not (whether they're the developer or not).

Failure to disclose, or some such?
KerryL1 (California)
Posts: 14,550
Posted:
It seems to m that since CA sellers are required to provide many such docs prior to the close of escrow, and complete CC&Rs certainly is one of them, there must be some recourse if sellers do not (whether they're the developer or not).

Failure to disclose, or some such?
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Quote:
Posted By KerryL1 on 11/15/2017 3:41 PM
It seems to m that since CA sellers are required to provide many such docs prior to the close of escrow, and complete CC&Rs certainly is one of them, there must be some recourse if sellers do not (whether they're the developer or not).

Failure to disclose, or some such?

My initial reaction is any smart developer is not going to just ignore the requirement. Obfuscate maybe, but not ignore. I am going for obfuscation in this case. As in they are there but the OP does not know where.
KerryL1 (California)
Posts: 14,550
Posted:
You might be right, John. I just can't tell from the OP's rambling posts.
KerryL1 (California)
Posts: 14,550
Posted:
You might be right, John. I just can't tell from the OP's rambling posts.
JanetB2 (Colorado)
Posts: 4,219
Posted:
If it has been two years since you purchased ... you potentially may have waited too long regarding failing to disclose anything when you purchased. Now you need to learn your CCR's and other documents well and also learn your State Statutes which in some instances can supercede your CCR's.

Here is info regarding your State Statute for Amendments:
https://www.davis-stirling.com/Main-Index/CC-R-Amendments

This describes the statute with regards to various allowed voting classes for owners and developer:
https://www.davis-stirling.com/Main-Index/Membership-Classes

If soon to be transferring from developer ... do you meet or exceed this section?:

Class B Membership. Class B membership is reserved to the developer, who is given three votes for each unit/lot held by the developer. Class B membership is tied to the developer's ownership of separate interests that are subject to assessments. Class B votes may be used on any issue presented to the membership for a vote. As provided for in 10 Cal Code Regs §2792.32(c), Class B membership automatically converts to Class A when one of the following occurs:
When 75% of the authorized residential interests transfer to homebuyers;

That would be good because then the Developer can no longer claim they get more votes regarding any changes to the CCR's.

Here is a link regarding transfer from Developer:
https://www.davis-stirling.com/Main-Index/Transfer-of-Power

Here is a link for the Developer Menu section regarding various areas including some already noted:
https://www.davis-stirling.com/Main-Index/Developer-Menu

If you have questions you can put them into the search on the top right side of the above noted web pages and you will have information at your fingertips.
VicjosS (California)
Posts: 26
Posted:
Great answers. The builder still controls most aspects of the community or about 75% or more, but the transfer process has begin. The builder expects to pull out by the middle of next year. Obviously we want to get them to be accountable while we can so this won't bite us in the future.

The issues we are facing during the last year and half includes: The management and board not giving us 30 days disclosure prior to changing a number of rules since we moved in i.e car washing, toy vehicles, etc. Our CC&Rs which we did not receive require all notices be delivered to each address via US mail including what is required by the civil code and elsewhere. fyi one proposed rule, The toy vehicle ban was rescinded after homeowners reminded they didn't get notice as required and the manager tried to quiet them when they spoke out in the meeting. Our CC&Rs which we only learned later about require we be notified by US mail to our addresses for such situations.

Also the CC&Rs which they neglected to give us has provisions prohibiting driveway parking except under limited circumstances. Our community is a wide open single family home community with own driveways and wide open streets, and no fire lanes. Though in practice they are very selective in enforcing it and seem to only target those who's cars appear junky or commercial to them or residents who have parked too many cars on them based on their subjective view ie three cars instead. Even though is no particularly visible rule on this not even in the CC&Rs. Though when owners complained about it by mail or in meetings the management and their lawyer just told them while its possible to change it they will face a uphill battle to get it changed because its part of the CC&Rs.

Another issue is that under the documents we did receive and review on escrow that we are supposed to use all available garage spaces for parking. And we did get notice from HOA to do so shortly upon move in, and we did as this is what we agreed upon. To clear the garage we bought some storage cabinets to place in an inconspicuous area on the side yard. While we carefully checked our documents we received at escrow but found no restrictions on them. However we received a violation notice from the HOA two months later regarding a CC&R provision violation due to its presence. How are we supposed to know if its never disclosed upfront? Its sketchy that they will overlook delivering CC&Rs all three methods of document delivery CDs, USBs, and paper for so prespective owners.
Also practice the HOA seems to be very selective in enforcing this provision throughout the neighborhood. Both the storage cabinet as well as the ban on blocking garage with storage.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Our HOA you had to park in the garage if you had one. It's not an unusual rule living in a HOA. It's kind of the purpose of garages is to keep cars out of view. The storage cabinets may be an issue due to fire risk. A neighbor of mine put in a storage shed but insurance told them could NOT be attached to the home. Fireman don't like them there that close to a home considering the flammable items that can be stored there out of sight. Puts them in some danger.

A few years ago was woken out of bed due to hearing explosions coming from up the road. A car parked in the garage had went up in flames. (There was a recall on it for this risk). You could hear all the paint cans and other chemical containers exploding for hours.

You may not realize that sometimes what may seem restrictive and unfair, may be there for your protection and others.
Former HOA President
VicjosS (California)
Posts: 26
Posted:
The real issue is not what the rules are but the lack of upfront disclosure of the CC&Rs. f they were upfront about "this is a park in the garage community" many would have took that into consideration when planning to buy there. But it appears they were carried away with selling homes, the agents were instructed to refrain to mention any restrictions that comes with ownership unless specifically asked.

While I am ok with residents being required to use the garage normally. One thing that irritates me and others living here is that the management used to allow practical exceptions such as when guests visit, during move in, holidays, or when landscape or other construction projects block garage access if we let the management know promptly. Though somehow a year down the road a fired up group of people quietly formed "a parking committee" with the management we know little about ranted that the CC&Rs don't even allow such exceptions. And the lawyer of the management company agreed with them and therefore the management removed the exceptions without ever giving us a single notice.

In addition if that obscure and subjective CC&R provision on storage cabinets is that important why it is not included in the R&Rs, guidelines, or other documents they did give us? Why hide in a documents that they don't even give to us upfront?
Another thing is that they don't seem to play by their own rules under the CC&Rs it seems as they hid it from us so we won't know to point them out when they break the rules.
JanetB2 (Colorado)
Posts: 4,219
Posted:
Quote:
Posted By VicjosS on 11/16/2017 4:52 PM
Great answers. The builder still controls most aspects of the community or about 75% or more, but the transfer process has begin. The builder expects to pull out by the middle of next year. Obviously we want to get them to be accountable while we can so this won't bite us in the future. You need to learn your documents well and your State Statutes so you will be prepared for the turnover. You also need to start banning together your neighbors to see who is willing to step up to the plate and get the HOA off to a good start.

The issues we are facing during the last year and half includes: The management and board not giving us 30 days disclosure prior to changing a number of rules since we moved in i.e car washing, toy vehicles, etc. Our CC&Rs which we did not receive require all notices be delivered to each address via US mail including what is required by the civil code and elsewhere. fyi one proposed rule, The toy vehicle ban was rescinded after homeowners reminded they didn't get notice as required and the manager tried to quiet them when they spoke out in the meeting. Our CC&Rs which we only learned later about require we be notified by US mail to our addresses for such situations.

Everybody need to follow the documents and CCR's (i.e. Your contract when purchased). Any new changes need to follow your CCR's and State Laws to be changed. If not followed the homeonwer's need to stand up and fight for their rights.

Also the CC&Rs which they neglected to give us has provisions prohibiting driveway parking except under limited circumstances. Our community is a wide open single family home community with own driveways and wide open streets, and no fire lanes. Though in practice they are very selective in enforcing it and seem to only target those who's cars appear junky or commercial to them or residents who have parked too many cars on them based on their subjective view ie three cars instead. Even though is no particularly visible rule on this not even in the CC&Rs. Though when owners complained about it by mail or in meetings the management and their lawyer just told them while its possible to change it they will face a uphill battle to get it changed because its part of the CC&Rs.

Keep in mind that for a short time more while under Developer control it will be difficult or virtually impossible to change the CCR's. However, when Owners take control, if the vast majority of Owners do not like certain items ... they can more easily change with the majority of Owners agreement.

Another issue is that under the documents we did receive and review on escrow that we are supposed to use all available garage spaces for parking. And we did get notice from HOA to do so shortly upon move in, and we did as this is what we agreed upon. To clear the garage we bought some storage cabinets to place in an inconspicuous area on the side yard. While we carefully checked our documents we received at escrow but found no restrictions on them. However we received a violation notice from the HOA two months later regarding a CC&R provision violation due to its presence. How are we supposed to know if its never disclosed upfront? Its sketchy that they will overlook delivering CC&Rs all three methods of document delivery CDs, USBs, and paper for so prespective owners.

Also practice the HOA seems to be very selective in enforcing this provision throughout the neighborhood. Both the storage cabinet as well as the ban on blocking garage with storage.

Keep in mind we cannot see your documents and can only go by what you state and our own experiences. If notices were sent within two months regarding current violations ... I would contend they should be fixed (as noted in the CCR's) or changed in the future if majority of owners agree. If it had been longer than two months (such as one year) I would have recommended looking at your State Statutes. For example in my state if the HOA does not notify an owner of a violation for an item such as a constructed shed, fence, shop, etc. within one year ... per State Law the owner can keep their constructed item.

Again, take this time to learn well your governing documents and state statutes. Knowledge is Power ... the more you know and how well you know the information will allow you to control various future circumstances.

VicjosS (California)
Posts: 26
Posted:
Quote:
Posted By JanetB2 on 11/26/2017 7:07 PM
Posted By VicjosS on 11/16/2017 4:52 PM
Great answers. The builder still controls most aspects of the community or about 75% or more, but the transfer process has begin. The builder expects to pull out by the middle of next year. Obviously we want to get them to be accountable while we can so this won't bite us in the future. You need to learn your documents well and your State Statutes so you will be prepared for the turnover. You also need to start banning together your neighbors to see who is willing to step up to the plate and get the HOA off to a good start.

The issues we are facing during the last year and half includes: The management and board not giving us 30 days disclosure prior to changing a number of rules since we moved in i.e car washing, toy vehicles, etc. Our CC&Rs which we did not receive require all notices be delivered to each address via US mail including what is required by the civil code and elsewhere. fyi one proposed rule, The toy vehicle ban was rescinded after homeowners reminded they didn't get notice as required and the manager tried to quiet them when they spoke out in the meeting. Our CC&Rs which we only learned later about require we be notified by US mail to our addresses for such situations.

Everybody need to follow the documents and CCR's (i.e. Your contract when purchased). Any new changes need to follow your CCR's and State Laws to be changed. If not followed the homeonwer's need to stand up and fight for their rights.

Also the CC&Rs which they neglected to give us has provisions prohibiting driveway parking except under limited circumstances. Our community is a wide open single family home community with own driveways and wide open streets, and no fire lanes. Though in practice they are very selective in enforcing it and seem to only target those who's cars appear junky or commercial to them or residents who have parked too many cars on them based on their subjective view ie three cars instead. Even though is no particularly visible rule on this not even in the CC&Rs. Though when owners complained about it by mail or in meetings the management and their lawyer just told them while its possible to change it they will face a uphill battle to get it changed because its part of the CC&Rs.

Keep in mind that for a short time more while under Developer control it will be difficult or virtually impossible to change the CCR's. However, when Owners take control, if the vast majority of Owners do not like certain items ... they can more easily change with the majority of Owners agreement.

Another issue is that under the documents we did receive and review on escrow that we are supposed to use all available garage spaces for parking. And we did get notice from HOA to do so shortly upon move in, and we did as this is what we agreed upon. To clear the garage we bought some storage cabinets to place in an inconspicuous area on the side yard. While we carefully checked our documents we received at escrow but found no restrictions on them. However we received a violation notice from the HOA two months later regarding a CC&R provision violation due to its presence. How are we supposed to know if its never disclosed upfront? Its sketchy that they will overlook delivering CC&Rs all three methods of document delivery CDs, USBs, and paper for so prespective owners.

Also practice the HOA seems to be very selective in enforcing this provision throughout the neighborhood. Both the storage cabinet as well as the ban on blocking garage with storage.

Keep in mind we cannot see your documents and can only go by what you state and our own experiences. If notices were sent within two months regarding current violations ... I would contend they should be fixed (as noted in the CCR's) or changed in the future if majority of owners agree. If it had been longer than two months (such as one year) I would have recommended looking at your State Statutes. For example in my state if the HOA does not notify an owner of a violation for an item such as a constructed shed, fence, shop, etc. within one year ... per State Law the owner can keep their constructed item.

Again, take this time to learn well your governing documents and state statutes. Knowledge is Power ... the more you know and how well you know the information will allow you to control various future circumstances.


Quote:
Posted By JanetB2 on 11/26/2017 7:07 PM
Posted By VicjosS on 11/16/2017 4:52 PM
Great answers. The builder still controls most aspects of the community or about 75% or more, but the transfer process has begin. The builder expects to pull out by the middle of next year. Obviously we want to get them to be accountable while we can so this won't bite us in the future. You need to learn your documents well and your State Statutes so you will be prepared for the turnover. You also need to start banning together your neighbors to see who is willing to step up to the plate and get the HOA off to a good start.

The issues we are facing during the last year and half includes: The management and board not giving us 30 days disclosure prior to changing a number of rules since we moved in i.e car washing, toy vehicles, etc. Our CC&Rs which we did not receive require all notices be delivered to each address via US mail including what is required by the civil code and elsewhere. fyi one proposed rule, The toy vehicle ban was rescinded after homeowners reminded they didn't get notice as required and the manager tried to quiet them when they spoke out in the meeting. Our CC&Rs which we only learned later about require we be notified by US mail to our addresses for such situations.

Everybody need to follow the documents and CCR's (i.e. Your contract when purchased). Any new changes need to follow your CCR's and State Laws to be changed. If not followed the homeonwer's need to stand up and fight for their rights.

Also the CC&Rs which they neglected to give us has provisions prohibiting driveway parking except under limited circumstances. Our community is a wide open single family home community with own driveways and wide open streets, and no fire lanes. Though in practice they are very selective in enforcing it and seem to only target those who's cars appear junky or commercial to them or residents who have parked too many cars on them based on their subjective view ie three cars instead. Even though is no particularly visible rule on this not even in the CC&Rs. Though when owners complained about it by mail or in meetings the management and their lawyer just told them while its possible to change it they will face a uphill battle to get it changed because its part of the CC&Rs.

Keep in mind that for a short time more while under Developer control it will be difficult or virtually impossible to change the CCR's. However, when Owners take control, if the vast majority of Owners do not like certain items ... they can more easily change with the majority of Owners agreement.

Another issue is that under the documents we did receive and review on escrow that we are supposed to use all available garage spaces for parking. And we did get notice from HOA to do so shortly upon move in, and we did as this is what we agreed upon. To clear the garage we bought some storage cabinets to place in an inconspicuous area on the side yard. While we carefully checked our documents we received at escrow but found no restrictions on them. However we received a violation notice from the HOA two months later regarding a CC&R provision violation due to its presence. How are we supposed to know if its never disclosed upfront? Its sketchy that they will overlook delivering CC&Rs all three methods of document delivery CDs, USBs, and paper for so prespective owners.

Also practice the HOA seems to be very selective in enforcing this provision throughout the neighborhood. Both the storage cabinet as well as the ban on blocking garage with storage.

Keep in mind we cannot see your documents and can only go by what you state and our own experiences. If notices were sent within two months regarding current violations ... I would contend they should be fixed (as noted in the CCR's) or changed in the future if majority of owners agree. If it had been longer than two months (such as one year) I would have recommended looking at your State Statutes. For example in my state if the HOA does not notify an owner of a violation for an item such as a constructed shed, fence, shop, etc. within one year ... per State Law the owner can keep their constructed item.

Again, take this time to learn well your governing documents and state statutes. Knowledge is Power ... the more you know and how well you know the information will allow you to control various future circumstances.


Thats true sorry it took me a while to reply.

Just an update we have just elected three new board members, all homeowners. One of them is a lawyer who is also concerned at some CC&R policies of the neighborhood. Though they will not be sworn into office until a few month's later when the builder leaves.

One thing I would like to know is since the builder did not disclose to us the documents would the CC&Rs be rendered unenforceable? Some lawyers told me thats the case since you didn't receive it when they were legally required to give it under contract, it doesn't legally exist therefore cannot be enforced against homeowners. This can be advantage for buyers who were deceived and dislike the provisions they later learned about. Though compliance the builder should be a separate issue. This could get interesting as the board members themselves would be homeowners after the builder leaves. This can save a lot of hassle in getting homeowners to work together and fight the developer and the lawyer costs involved. Changing CC&Rs would be a nightmare that has a low chance of success due to the natural tendency for people to loathe to participate in voting. It would take 80% of homeowner votes to see change. As always there may always be people who are annoyed and vocal about it but never bother to vote for change when the time comes. So If its unenforceable in the first place is it still necessary to take action or no action would be taken.

Another thing I learned is that each homeowner can file a complaint through California's business and profession code department or something like that and violations may earn the builder a $10,000 fine per violation. Each sale of a home to a homeowner counts as a violation. So its not a small number if quite a number of homeowners stand up and file the complaint.

Just to clarify, we signed to receive all the documents via the CD. Which we kept and clearly it does not include the CC&R document. CD ROMs cannot be tampered with so it should provide solid evidence. It seems sketchy as they seems to hid the documents so they can get away with not complying their duties as well as deceiving new buyers to buy their homes without any way of knowing what they really are getting themselves into.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
They are on file at your local courthouse. They consider them and the Articles of Incorporation "PUBLIC" documents. Which basically breaks down to the potential buyer is responsible to be informed. Some states do make it so the seller provides the documents before closing. However, not having them is NOT a reason to not follow them. They go with the land.
Former HOA President
VicjosS (California)
Posts: 26
Posted:
Melissa,

This is California not Alabama.

The laws are different here.

And they are certainly not at the local courthouse here.

Please note that other posters in earlier posts already explained it to you. There is no need to repeat it.
BillH10 (Texas)
Posts: 1,217
Posted:
Vicjos, where are the documents kept as a matter of public record in California? The County Clerk, or ????
MelissaP1 (Alabama)
Posts: 13,836
Posted:
They are kept at the county records department or online no matter what state you live in. Just because you did not get handed a copy doesn't mean they don't exist or don't have to be followed. The fact is that they are considered PUBLIC documents. It varies per state IF they are turned over by seller or by your own responsibility as a purchaser.

The very reason they are PUBLIC documents is the very fact that no one wants to take responsibility of giving them out. It's just some states made laws that seller has to turn over. Public documents are kept at the courthouse records department as a central public place of storage. Many making them even available online.
Former HOA President
VicjosS (California)
Posts: 26
Posted:
Let me make my points clear:

-I signed agreement to have all documents delivered by CD ROM but the full CC&Rs, the most important document not in there, sounds sketchy. Obfuscation by not including the required document under contract and state law?

-There are a number of neighbors on the same boat as me who never received the full copy of the CC&Rs. Whether they elected to have documents delivered by paper, by CD-ROM, or electronically. There is no excuse for them to be so negligent to accidentally forget this document, I mean they do have full files of the R&Rs, agreements, design guidelines, etc regarding the association on the CD.

-Many residents are surprised to learn that some annoying "rules" they never expected are practically unchangeable in the future due to being CC&Rs even after the development is handed over to a homeowner controlled board. Some of which arn't even in the rules and regulation and design guideline we did receive. Also to know what the duties the association owes to the owners. We had issues with developer treating it as they don't exist. We surprisingly learned after we finally got ahold of the real copy of it.

-I read in CA sellers/developers are required to disclose this full document before close of escrow and $10,000 fines can be levied under the business and profession code 11018.6 due to failure to disclose escrow violation. Buyers are not required to go to the county recorder to request them. Thank goodness as it would be a nightmare to do this in places like LA County.
-To amend the CC&Rs in California would require 2/3 vote and investment of costs. We would like to developer to at least help us recoup this cost by being liable for placing us in this mess in the first place. We are deciding what legal action to take either as individual owner or as a community. One of our newly elected board member happen to be a lawyer.

-The CA lawyer I talked to states based on rules of contract in CA if you do not know what you've agreed to, then you can't reasonably be bound to it. There's no specific rules that regulate that as it is just the common law of contracts that California recognizes. Thus, it's not possible for you to avoid breaking a rule if you did not know it was a rule in the first place, therefore making the rule null and void at least those pertaining to individual homeowners. Its the best case scenario as no arduous actions need to be taken. I know its not uncommon for CC&R provisions to be ruled unenforceable.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
I am going to just put this out there. It sounds like your more interested in suing your developer for not providing the CC&R's than you are in READING them. If you were so upset about not getting to read them, then you would be asking advice (and taking) where to go find them yourself.

We are not here to give legal advice or encourage one to sue. The end result if you sue? You get a copy of those CC&R's. The developer may face fines. Which is probably going to be paid with HOA funds... Those funds you and your neighbors pay...

So do you want to just go find those documents or do you want to go to court for someone else to do it for you?
Former HOA President
TimB4 (Tennessee)
Posts: 21,059
Posted:
Vicjos,

I agree that failure to provide a full copy of all the governing documents is bad.
It may or may not be negligent. Regardless, it's wrong.
Expecting that other owners brought this to the Developers attention and it's still happening could be good enough to say negligence, perhaps intentional.

Lets say it was intentional.
Lets say you purchased your home within the last 30 days.
You may have a case for breach of contract.
If you win, this means the contract can be broken and you lose your home along with any changes you may have put into it.

If that's what you want and it's been within the last 30-60 days - take the issue to court for breach of contract.

Now, if this occurred a year ago, I doubt you would win anything.

KerryL1 (California)
Posts: 14,550
Posted:
Melissa, to repeat for the millionth time: In CA, and other states too, the Seller is responsible to disclose the CC&Rs + many more items to prospective buyers beFORE the close of escrow.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
NO duh Kerry. Other states do not. Must recognize that some states do and others do not. What is the problem with that?
Former HOA President
RichardP13 (California)
Posts: 3,868
Posted:
Quote:
Posted By MelissaP1 on 02/01/2018 4:23 PM
NO duh Kerry. Other states do not. Must recognize that some states do and others do not. What is the problem with that?

FYI

The link below will show what is required to be given to the buyer during escrow, not at close of escrow. I am sure you and your former association could whip these together at a moment's notice.

https://www.davis-stirling.com/HOME/Statutes/Civil-Code-4528#axzz2CR2ljirY

In case you're curious, I can have all those processed in 10 minutes. Have to love technology!
KerryL1 (California)
Posts: 14,550
Posted:
Just because the CC&Rs are available, does not mean prospective buyers must hightail it over there or go online to fetch them. So...in many states prospective buyers need know nothing about where to go--the docs must be delivered to them. And it's not a matter of, as you often say, Melissa, "courtesy"; it's the law.

Fr: Davis-Stirling.com--applies to CA common interest developments (CIDs) of all kinds:

Costs & Fees. As required by Civil Code §4530, prior to the close of escrow sellers must provide buyers with ten different categories of documents. (Civ. Code §4525.) By statute, it is the responsibility of the seller to pay those costs. (Civ. Code §4530(b)(8).) Associations may pay a person or entity to assemble the documents on behalf of the association. (Civ. Code §4530.) Associations are allowed to collect a reasonable fee (including those charged by a management company) based on their actual costs but are prohibited from charging additional fees for electronic delivery of documents. Delivery of the documents may not be withheld for any reason nor subject to any condition except the payment of the fee. (Civ. Code §4530.) The document costs may or may not be in an association's transfer fees.

Statutory Form. As provided for in Civil Code §4530, associations must fill out a form showing the documents being submitted pursuant to Section 4528 and an estimated cost for those records.

Fine for Willful Violation. There is a $500 fine for anyone who willfully violates the disclosure requirement. In addition, in an action to enforce this liability, the prevailing party shall be awarded reasonable attorneys' fees. (Civ. Code §4540.)
MelissaP1 (Alabama)
Posts: 13,836
Posted:
AGAIN that is YOUR laws for YOUR state. Does NOT mean EVERYONE it applies. So if there is 2 different scenerios, then I state BOTH. I do NOT cover statement and say what my state is. As it does NOT apply to all. It's up to YOU to find out what YOUR state laws are in regards of who does or does not provide CC&R's at closing.
Former HOA President
RichardP13 (California)
Posts: 3,868
Posted:
Quote:
Posted By MelissaP1 on 02/01/2018 8:15 PM
AGAIN that is YOUR laws for YOUR state. Does NOT mean EVERYONE it applies. So if there is 2 different scenerios, then I state BOTH. I do NOT cover statement and say what my state is. As it does NOT apply to all. It's up to YOU to find out what YOUR state laws are in regards of who does or does not provide CC&R's at closing.

If you don't know California law, then DO NOT respond. Very simple!
VicjosS (California)
Posts: 26
Posted:

Thanks Richard and Kerry.
For clarifying the sections of California code.
It really comes in handy.

I guess to my first question regarding whether it’s common whether this occurs often with new home communities. We are all new at this never bought in a new home community. Though from our experience they are not much different car dealer salesman trying their best to make sales and would do anything to lure people into buying and would never reveal any rules of the community or negatives for that matter unless asked directly.

Though I am guessing from what I am seeing not many HOAtalk members have experience buying new homes.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Quote:
Posted By VicjosS on 02/01/2018 9:42 PM

Thanks Richard and Kerry.
For clarifying the sections of California code.
It really comes in handy.

I guess to my first question regarding whether it’s common whether this occurs often with new home communities. We are all new at this never bought in a new home community. Though from our experience they are not much different car dealer salesman trying their best to make sales and would do anything to lure people into buying and would never reveal any rules of the community or negatives for that matter unless asked directly.

Though I am guessing from what I am seeing not many HOAtalk members have experience buying new homes.

My last two home purchases were new homes in an HOA purchased from the developer/Declarant. That ssid, they were my 5th and 6th HOA so I did know what to look for.

BillH10 (Texas)
Posts: 1,217
Posted:
To the question of the OP regarding new home purchases in an HOA, we were given everything on paper and sometimes CD, long before the close. The seller is required to do so. There were changes in the documents before the close and afterward while still under developer control, those were sent as soon as they were filed. I suspect this diligence is because the state of Texas seems to be as rigorous about provision of the documents by the seller as California appears to be.

Similar to John in South Carolina, of our last four home purchases, all were in an HOA and three were new homes. Three were in Texas, one in California.

When we signed the purchase agreements for the new homes in Texas, we were given all the documents required by the state the moment we set down the pen. The California purchase was in 1993 and I do not recall when we were given the documents. I do know it was well before the close as it was two or three months before construction was complete. The timeline for previously owned homes in an HOA in Texas is similar; in all cases provision of the documents is the responsibility of the seller.

VicjosS (California)
Posts: 26
Posted:
Thank you guys. I do assume that not many buy new homes. Or ones in communities with HOA.

Though my case I know that since those were hard copies from the developer(CD ROM) I received that excluded the file, this is not an isolated incident of agent error. As they are just giving out the documents provided by their builder. The builder had left the full document out of the “packet” for whatever reason. Obviously we know that the developer, through their hired management and board during the buildout period won’t comply with their own rules which we later learned.

Though I know that agents from builders do act like car salesman, in that they will not say anything regarding community rules unless you ask them directly. They will only tell you the “perks” that would lure you into buying the house. And will avoid saying anything that will negatively affect someone’s decision as much as they can get away with.

That all said I will definitely avoid buying new homes or any homes with HOA in those states with no consumer protection whatsoever for HOA residents like with Alabama.
JanetB2 (Colorado)
Posts: 4,219
Posted:
What I did when purchased in a New HOA under a Builder was go to my local County Records and purchased copies of all the documents. We were given the CCR’s, but not the Articles or Bylaws. Then there was also the Amendment filed after we purchased which we were not given as it was filed underhanded behind our backs.

So ... since it has been a couple of years your best action would be to obtain copies of all the documents on file with your County Records. Some Counties have open access where you can go online to lookup and print while others charge online access or a per page small fee. Then go through them in order by when they were filed. Keep in mind if you have been given documents which have NOT been filed with your County Records, then they potentially are not legal and binding. Filed documents will have noted on them a Book and Page Number along with the Filed Date.

JohnC46 (South Carolina)
Posts: 14,265
Posted:
In SC only the Covenants have to be filed. The Bylaws and Rules & Regulations do not have to be filed. In our case, they are all filed.

When our HOA was under declarant control and one wanted to purchase a home, they gave a $500 deposit and signed a 30 day letter of intent. The letter basically said they had 30 days to work out the details with the builder such as which lot, which model house, options, final cost, etc. When they signed this letter they were given a copy of the Covenants, Bylaws, and Rules & Regulations. They were required to initial each page (30 some odd) saying they received such. Either party could, for any reason, cancel the letter of intent within the 30 days and the $500 deposit was returned.

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