Undisclosed CC&R's, twelve years into ownership, I find them

Started by WaltH • 3 replies • 809 views

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WaltH (California)
Posts: 1

Posted:

Hello, I am looking for any help to get out of a possibly horrible situation. I purchased 5 acres as a short sale 10 years ago. there is 75 open acres all around me. which also consist of three 5 acre parcels that are on the market. seeing that they are up for sale now, i did some digging in the county office, because of my interest in purchasing one or more of them. turns out there are CC&R's on all four parcels which include mine. the lady who owned the house i bought as a short sale, created an estate. the rules within the document say i cant have my horses, cant have my type of fencing, cant have my truck which i use to transport the horses, cant have a gravel driveway, have to have a minimum of 3500 sq. ft. house with three car attached garage, and many more rules that i do not comply with currently. it was never disclosed to me that the property had not only the CCR on it, but come to find out, environmental protection for watersheds. the ccr is still controlled by declarant, (the lady who got foreclosed on), and does not run out for fifty years, and says it will automatically be extended for periods of ten years after the fifty. i went to the planning department, and since the declarant never parceled off the remaining 12 parcels from the other 60 acres, her plans expired. my questions are, since there are no other home owners, do i have a vote to destroy the ccr?since her plans never were finished, does the ccr still stand? was my title company supposed to know about the ccr? and also, since the declarant literally has not even physically touched the other parcels for 10 years, can she just show up and start suing me? if the declarat is in violation of her own rules, can i place a lien against her? can i purchase the declarat rights from her and how? i know it is a lot, but this has been a huge learning curve for me, since i never expected or intended to live in an hoa, ccr situation.

Thank you for any help, I honestly and greatly appreciate it.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

This is what happens when you pay cash or do short sale/foreclosure. The paperwork like CC&R's get lost in the transaction. Many states requires the owner provide them to the buyer prior to closing. However, in cases of cash, short sale, or foreclosure there may be no "owner". Hence why you may not have been aware of the existence of needing these documents.

It is NOT the responsibility of the lawyer, Realtor, Title insurance, Bank/Mortgage company, or even the HOA to provide you a copy. (Unless your in one of those states that require seller to provide) It is viewed as the "Buyer's responsibility" to be informed. The Articles of Incorporation and CC&R's are considered PUBLIC documents. The By-laws not so much. Those are internal documents of the HOA.

You did right in finding them at your local courthouse for the CC&R's. The Articles of Incorporation are at the state level. Most likely able to find them online.

You may be able to enforce the restrictions. Just be prepared to pay a lawyer to do it.

Former HOA President

TimB4 (Tennessee)
Posts: 21,059

Posted:

There are other homeowners.
They would be who control the other parcels - bank, developer, estate, etc.

Now, if you were to purchase all of the parcels, you could change the covenants or remove them completely as you see fit. If you were to purchase enough parcels to control the voting interest, you could do the same.

You likely need to consult an attorney.
One versed in property law (not just real estate deals)

JanetB2 (Colorado)
Posts: 4,219

Posted:

You need to look at your State Statutes and then hire an Attorney. One section of your State Statutes notes:

https://www.davis-stirling.com/HOME/Statutes/Civil-Code-4230#axzz2CR2ljirY

Civil Code §4230. Removing Declarant Provisions.
[Old: Civ. Code §1355.5]

(a) Notwithstanding any provision of the governing documents to the contrary, the board may, after the developer has completed construction of the development, has terminated construction activities, and has terminated marketing activities for the sale, lease, or other disposition of separate interests within the development , adopt an amendment deleting from any of the governing documents any provision which is unequivocally designed and intended, or which by its nature can only have been designed or intended, to facilitate the developer in completing the construction or marketing of the development. However, provisions of the governing documents relative to a particular construction or marketing phase of the development may not be deleted under the authorization of this subdivision until that construction or marketing phase has been completed.

(b) The provisions which may be deleted by action of the board shall be limited to those which provide for access by the developer over or across the common area for the purposes of (1) completion of construction of the development, and (2) the erection, construction, or maintenance of structures or other facilities designed to facilitate the completion of construction or marketing of separate interests.

(c) At least 30 days prior to taking action pursuant to subdivision (a), the board shall deliver to all members, by individual delivery, pursuant to Section 4040, (1) a copy of all amendments to the governing documents proposed to be adopted under subdivision (a), and (2) a notice of the time, date, and place the board will consider adoption of the amendments. The board may consider adoption of amendments to the governing documents pursuant to subdivision (a) only at a meeting that is open to all members, who shall be given opportunity to make comments thereon. All deliberations of the board on any action proposed under subdivision (a) shall only be conducted in an open meeting.

(d) The board may not amend the governing documents pursuant to this section without the approval of a majority of a quorum of the members, pursuant to Section 4070. For the purposes of this section, “quorum” means more than 50 percent of the members who own no more than two separate interests in the development.

(Added by Stats. 2012, Ch. 180, Sec. 2. Effective January 1, 2013. Operative January 1, 2014, by Sec. 3 of Ch. 180.)

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