Change HOA Covenants / Notary required?

Hello All,

I am working with my HOA management company on drafting an amendment to our covenant language. Since they were unwilling to explain the process for having it changed, I drafted a petition which includes the current and proposed language and lines for each lot owner to give their printed name, signature, address, telephone number, lot number, and date. Our covenants require 75% of the lot owners to sign the amendment. The declarant is no longer a lot or parcel owner.

Out covenants reads as follows:
8.3 Amendment. This Declaration may be amended or terminated during the first twenty (20) year period by and instrument signed by not less than seventy-five percent(75%) of the Owners, and thereafter may be amended or terminated by an instrument signed by not less than sixty-seven percent (67%) of the Owners. Any such amendment or termination shall not be effective until an instrument evidencing such change has been filed of record in the Office of the Clerk of Court of York County. Notwithstanding the foregoing, the Declarant shall have the ability to amend the Declaration so long as Declarant is an owner of a Lot or parcel of land subject to these Declarations.

So I went door to door for several weeks to get the required signatures necessary to change the covenants (I have 80% of the lot owners), and now the HOA Management company says that the document is not legal because we didn't have a notary verify each signature. I told her that our covenants do not say anything about a notary having to witness each signature. She is saying that South Carolina Law requires this, and will not provide me with the language in the state law to confirm. Has anyone seen this as a requirement? I think they are just forcing their views and not necessarily the wishes of the property owners.

Any advise from someone familiar with South Carolina HOA laws would be greatly appreciated.

Thanks,
Dennis

We do have some knowledgeable SC posters. But I, too, ask: what's makes you think the MC is correct?? If they can't show you the law in writing, tell them to. Often HOA boards seek legal advice form an HOA attorney.

Are you on the board?

I agree. Forget what the MC says and get a lawyers advice.

In SC an Amendment only has to be filed with the Clerk of Deeds one time. It does not have to be attached to each deed as it has to be in some states thus not as expensive.

Not to be critical, but you should have started with a lawyer to be sure the change was legally drawn up and not even gotten the MC involved.

Dennis

I hate those that play lawyer and while I do not have a legal answer to your question, we have discussed a Covenant change with our lawyer. He has told us that he can prepare the Covenant change and a mail-in proxy for owners to return approving the change thus I do not understand the need for notarizing signatures.

The BOD should be talking to the attorney, not the MC. could it be that your MC does not want the change and is throwing roadblocks in the way?

As you are not on the BOD, what is the BOD's attitude about you going about trying to make a Covenant change. Maybe this is the issue. The BOD is fighting you via the MC. The more I type, the more I think this might be the issue. Am I warm?

What, Dennis, do your covenants say about HOW to amend them?

Dennis

Was the MC on-board when the owners took over? Do you have the BOD's approval to seek a Covenant change? What is the change about?

Oooops, sorry, Dennis, I'd forgotten about your OP! Sounds like you followed your covenants. Still, with others, seek your own legal advice or get other interested neighbors to chip in for an opinion. The wording of your amendment really does need a lawyers' eye.