Party Wall Agreements and CC&Rs

The original developer of my subdivision recorded a "Party Wall Agreement" with the county back in 1989 immediately after recording the original CC&Rs (Declaration). It's clear from the wording that the agreement constitutes a covenant running with the land. All 100 lots were initially planned to be attached villas (duplexes) with 50 buildings each having 2 separate attached residences. The paired lot numbers were explicitly enumerated in the Party Wall Agreement (PWA). None of our main governing documents refer to or mention the PWA. It exists wholly outside the hierarchy of our Declaration, Articles of Incorporation, and Bylaws.

Leaving aside for the moment the fact that Florida's MRTA law will extinguish the PWA covenanted deed restrictions in about 2 years, the original developer filed a re-plat of the subdivision in the early 1990s which re-numbered half of the original lots including the not-yet-built duplexes. A subsequent homebuilder eventually built out the remaining lots as 32 freestanding single-family homes and 9 duplexes (18 homes).

The Party Wall Agreement was never revised or updated and today it covers the original 25 duplexes built by the original developer, but none of the 9 duplexes built by the follow-on homebuilder (who built them on re-numbered lots).

We'd like to amend our Declaration to include the language (modified appropriately) contained in the 1989 Party Wall Agreement. We'd like to add to that language concerning Party Roofs. Research has turned up several examples of CC&Rs in the county that have such language right in their Declarations.

Question: Since these Party Wall/Roof agreements will only affect 68 of the 100 owners in the community, would such an amendment require the signatures of all 68 duplex owners? Owners of the original 25 duplex units still enjoy the protections of the PWA (at least until MRTA expires it) but the 18 owners in the "new" duplexes have never been subject to the PWA at all. If I owned a duplex here, which I don't, I wouldn't be too happy with the current arrangement. Since the original PWA exists outside of and separate from the CC&Rs of the HOA, is it really up to the HOA to renew the PWA or should that be left to the individual owners? Since the HOA is responsible for all of the roofs I think it's in the HOAs interest to ensure there are Party Wall and Roof agreements that cover all of the duplexes.

Any thoughts?

It assigns joint responsibility to the owners of each side. It gives each side's owner the power to lien the other owner if the other owner does not hold up his end. It grants the mortagee of each side the same authority in the event an owner fails to force the other side's owner to pay his or her fair share of the costs for needed repairs.

"Exhibit A" is referenced throughout and that is a page from the original plat of the subdivision showing the outlines of the buildings and lots and the lot numbers (2 per building). The recorded agreement appears immediately after (same official record book, adjacent pages) the recorded CC&Rs but is not a part of those. The HOA is not named in the party wall document at all. Of note, the HOA was incorporated about 3 months before the CC&Rs were recorded with the county and the original plat of the subdivision wasn't filed until a month after the CC&Rs were recorded. So "Exhibit A" of the party wall agreement shows lot numbers and outlines from the plat which had not yet been recorded with the county.

I attached a redacted copy. The signature/notary/county recorder page at the end was also deleted.

We have similar language within our CC&Rs.

I would simply amend the CC&Rs.

Yes, with others, amend your governing documents so they clearly show this shared responsibility. In CA, I believe the language would be that these shared walls are exclusive use common area, i.e., they are used by more than one but fewer than all Owners. My understanding is that "common areas are shared by all who must or will want to use them. You'll want the correct name in your docs.

We have a similar issue in that our only our original CA DRE (Dept. of RE, Now Bur. of RE) budget filed with the state the only place where the HOW dues in our 2 special benefit areas are calculated. If a prospective buyer's realtor were to ask our newish PM how they're calculated, she'd have a hard time answering.

leave the CAREFULLY CRAFTED 'legalese' as is

a limited use or exclusive use common element may require funding by ALL members

this is the exact reason a 'party wall' agreement is necessary

ie. a wall shared by multiple parties