Termination of Covenant

Started by DWayneD • 8 replies • 2513 views

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DWayneD (Texas)
Posts: 11

Posted:

The covenants and restrictions of this Declaration shall run with and bind ghe land, for a term of thirty (30 years from the date this Declarations is recorded.
Our Declaration is getting close to running out. Does the Homeowners Articles of Incorporation and By-laws become the ruling document?
Does the Declarant have a right to extend the Covenant for a period of time?

RogerB (Colorado)
Posts: 5,067

Posted:

Are you sure there is not another sentence which extends the Declaration after the initial 30 year term? If not, you can amend the Declaration prior to 30 years to extend it if enough members of the HOA desire to continue. If the owners do not want to extend the Declaration of CC&Rs why be an association or be incorporated?

RogerB

DorothyH (Florida)
Posts: 23

Posted:

DWayne what state are you in? Here in Florida the Association has to file a notice to preserve the Restrictions before the 30 year period or they become null and void.
Our Association is in the midst of this procedure and it is time consuming and expense but not as much of a
mess if we let them expire. This is called the Marketable Title Action. Some Association
learned too late about this law and their restrictions expired and believe me that was and still is a mess.

DorothyH

DWayneD (Texas)
Posts: 11

Posted:

RogerB
Yes the covenant has a provision for extension if 60% of lots agree. The residents like the gated community, just do not want developer to continue as enforcer of covenant. Association is planning to use Articles of Incorporation and By-laws as governing documents. Question is will this work and if not why not? What kind of problems can be expected?
DorothyH
I live in Texas. Not aware of any Statutes that apply. If anyone knows sure would appreciate a message.

RogerB (Colorado)
Posts: 5,067

Posted:

DWayne, why after all these years are you still allowing the developer to control enforcement of the Declaration of CC&Rs? You can amend and change that as well as extending the Declaration. Keep the Declaration as the primary governing document plus keep the Articles and by-laws.

LuciusD
Posts: 139

Posted:

DWayneD,
If you will forgive my bluntness, your statement that the association plans to use the articles and bylaws as governing documents suggest to me "the association" has not studied the problem very carefully and does not really understand the interdependence of the three customary documents.
The declaration is the fundamental document that creates and maintains the existence of the association. The other two are actually subordinate. The declaration is what binds the association to the properties.
"The association" needs to do a considerable amount of homework and consult with a competent attorney.

LuciusD
Posts: 139

Posted:

DWayneD,
A reference I like to use to review how the governing documents "play together" can be found on page 15 of the document at
http://www.hindmansanchez.com/files/community_association_living.pdf

LisaS (Illinois)
Posts: 341

Posted:

You will need to extend the Declaration so that you may be able to function as an association. Without a legally binding document, sooner or later you will have a rebellion and many will stop paying dues. Why pay if you don't have to? As well, if your declarations expire, you will have problems with enforcement and dissolution of ownership of common elements.

I agree that you need to do your homework, and not let the declaration expire. It is a smaller hassle to extend it than to reinstate it.

DorothyH (Florida)
Posts: 23

Posted:

DWayneD recheck the wording of your covenants. Does it say that 60%
must vote to extend them or does it state that the covenants shall automatically extend for a certain number of years UNLESS
prior to the beginning of such period then they can be extended, amended, terminated
or modified by the members. Another question hasn't the Developer
or the Declarant turned over the control of the Association to the members?
If he or she has, then the Association has control of the covenants and
not the Declarant.Then they can extend it , etc. DorothyH.

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