HOA might not be fully legal.

Started by GaryW12 • 33 replies • 923 views

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GaryW12 (Alabama)
Posts: 56

Posted:

I have a delimia. I was told that Declaration/Protective Covenants is needed for an HOA to comply with the law.

If a HOA only has.
Articles of incorporation
Deed Restrictions that are registered with the county
Bylaws that are NOT registered with the county

Yet do not have Declaration/Protective Covenants paperwork anywhere?

Does this sound like a "fake hoa". that is more like a civic group?

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Gary,

In Florida you would also have a Declaration of Covenants, Conditions and Restrictions.

Depending on when the community was incorporated, it may not have been common for the By Laws to have been recorded.

Your county likely has a website, perhaps run by your county clerk, that should provide the ability to search for your D, CC&Rs - these sorts of websites typically have digitized records beginning at some particular date - for instance, my county digitized and has online real estate records and public records recorded 1982 and later. Anything prior to that they are happy to search for, but for you to get copies you must pay whatever rate they charge - it usually is not expensive.

GaryW12 (Alabama)
Posts: 56

Posted:

I'll have to call them to see if they will help. I'll most likely have to go there in person. Thank you.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Gary,

Have you checked to see if the material is online from your county office?

GeorgeS21 (Florida)
Posts: 3,808

Posted:

In which Florida county is your HOA?

KerryL1 (California)
Posts: 14,550

Posted:

I wonder if the Deed Restriction IS your covenants or declaration. How many pages is it?

GaryW12 (Alabama)
Posts: 56

Posted:

8 pages.

KerryL1 (California)
Posts: 14,550

Posted:

Can you name 3-4 subtitles in this Deed Restriction?

KerryL1 (California)
Posts: 14,550

Posted:

Can you name 3-4 subtitles in this Deed Restriction?

GaryW12 (Alabama)
Posts: 56

Posted:

use restrictions
setback restrictions
building size restrictions
signs
pets
easements
drainage
architectural control committee

KerryL1 (California)
Posts: 14,550

Posted:

Since this is recorded in the county and given the subtitles, it really sounds like what most folks call a Declaration or CC&Rs. CC&R stands for Covenants, Conditions & Restrictions, so I think the "Restrictions" is it.

Does it or perhaps one of your other docs have an Index that defines HOA words? It might deg fine your Deed Restrictions and possibly say it's a governing document.

Someone in FL might know about this.

GaryW12 (Alabama)
Posts: 56

Posted:

Well I will keep asking around. Thanks for help so far.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

I am confused, again.

Have you looked on line for the documents?

Have you called your county clerk?

GeorgeS21 (Florida)
Posts: 3,808

Posted:

And, a follow -up.

I asked which county you are in ...did you answer?

GaryW12 (Alabama)
Posts: 56

Posted:

Citrus County Florida

GeorgeS21 (Florida)
Posts: 3,808

Posted:

You’ve been to https://www.citrusclerk.org/197/Official-Records?

GaryW12 (Alabama)
Posts: 56

Posted:

Yes I have found 3 documents from 1977-1978 sets of deed restrictions and deed restriction amendments.
1984 articles of incorporation
1991 deed restrictions
2004 deed restriction update.

This is all the files the clerk helped me find. The clerk told me there "could be more" but that is all they could help me find.

I don't know how much more I could do than that so far.

KerryL1 (California)
Posts: 14,550

Posted:

Is there particular pieces of info you're looking for, Gary?

GaryW12 (Alabama)
Posts: 56

Posted:

There seems to be a big debate if our community is mandatory or non-mandatory.

So if someone could tell me how one would go about finding out if it is.

Right now the HOA board seems to be under the impression that they might not legally be able to enforce our deed restrictions, so I was going to try to help out on this investigation.

KerryL1 (California)
Posts: 14,550

Posted:

Do the Deed Restrictions or any other doc say anything about whether your HOA is mandatory or voluntary? George know a check of a lot about that topic!

RichardP13 (California)
Posts: 3,868

Posted:

I think what you are looking for in regards to whether or not the association is voluntary or mandatory should be found in the Articles of Incorporation.

GenoS (Florida)
Posts: 4,276

Posted:

Deed restrictions are most likely your covenants, or CC&Rs. The category "RESTRICTIONS" on my county's public records website is where all declarations, deed restrictions and covenants show up. My own FS 720 HOA's CC&Rs are legally titled, "Dedication and Declaration of Restrictions and Protective Covenants". It's spelled out very clearly that they are deed restrictions that run with the land.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Florida has some communities wherein the HOA is voluntary ...but, the deed restrictions are not. A weird combination.

In this circumstance, the HOA or even an owner, can still seek to enforce the covenants - assuming the deeds and docs note there are covenants.

The down side of knowing you have a voluntary org is that you cannot force dues to be paid by owners.

So, find out which it is - if voluntary (hopefully not) try and get agreement to modify the doc to mandatory and go from there.

KerryL1 (California)
Posts: 14,550

Posted:

Thanks, Geno; I only could guess at this. Where, George, in what doc, will Gary find if his HOA is voluntary or not.

RichardP13 (California)
Posts: 3,868

Posted:

The language is in the Articles of Incorporation.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

The language describing my HOA's as voluntary is in the D, CC&Rs. It is very clear.

"Association" shall mean and refer to that certain homeowners' association organized by Declarant, membership in which by the Owners of Lots shall be voluntary ..."

RichardP13 (California)
Posts: 3,868

Posted:

These are Articles of Incorporation for Florida HOA's

Page 27 of 53---https://sienaoakshoa.com/wp-content/uploads/2017/08/Docs0817.pdf

Page 3 of 67--This is their CCRs as the Articles would have the same language. This is a voluntary HOA. https://www.wedgefieldhomeowners.com/wp-content/uploads/2016/04/Declaration.pdf

HOA Master Community which subs are voluntary and which are mandatory.http://bloomingdalehoa.com/deed-restrictions/drsection/

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Yep - kinda the same language as ours ...

From the link, re Wedgefield, provided:

"WHEREAS. the Association is a Florida not for profit corporation and is a voluntary homeowners association created for the purposes of providing for the maintenance, preservation and architectural control of the residential lots located within the Properties; and ..."

What is silly is the belief that a voluntary HOA is going to be able to provide "...for the maintenance, preservation and architectural control ..."

The net effect is this means payment of dues is voluntary, but the deeded restrictions are not.

Sigh.

RichardP13 (California)
Posts: 3,868

Posted:

No one here is going to be able to change those facts.

GaryW12 (Alabama)
Posts: 56

Posted:

Good news for us. By taking above advise , I now know that we are not voluntary and we are mandatory. Thanks again guys!

KerryL1 (California)
Posts: 14,550

Posted:

So...where did you find this info, Gary?

GaryW12 (Alabama)
Posts: 56

Posted:

Articles of Incorporation and Deed Restrictions are wrote of which they do not include the word "voluntary"

In Fl you can have a hoa that has mandatory deeds , regardless of mandatory dues .

Examples above shown lists of what a totally volunteer looks like, and ours do not have that word anywhere.

PainintheA
Posts: 77

Posted:

Quote:

Posted By GaryW12 on 08/01/2018 5:30 PM
Yes I have found 3 documents from 1977-1978 sets of deed restrictions and deed restriction amendments.
1984 articles of incorporation
1991 deed restrictions
2004 deed restriction update.

This is all the files the clerk helped me find. The clerk told me there "could be more" but that is all they could help me find.

I don't know how much more I could do than that so far.

That would be for your INCORPOATED and (legally) recorded HOA

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By GaryW12 on 08/02/2018 1:26 PM
In Fl you can have a hoa that has mandatory deeds , regardless of mandatory dues.

Yes you can. I'm glad the county clerk helped you locate some of your documents. If your county has online official records I suggest you visit their website, figure out how to make use of it for searching different types of documents, and see what else is there, if anything. When your online search turns up the documents the clerk personally helped you with, then you'll know you're on the right track.

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