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Is an HOA required to have Declaration of Covenants, Conditions, and Restrictions (CC&Rs)?

Started by AlexaA • 33 replies • 969 views

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AlexaA (Washington)
Posts: 9
Posted:

We purchased a house in a very old and established neighborhood (so not one that was built out at the same time by a developer) that has a very casually run HOA (only 12 houses). I recently discovered that there are only Bylaws, but no written Declaration of Covenants, Conditions, and Restrictions (CC&Rs). Everyone gets along very well and tends to agree, but from a legal standpoint it seems important to get things sorted out for the times that ownership changes, which does not happen very often at all.
Everything I read online seems just seems to assume that every HOA has a Declaration of Covenants, Conditions, and Restrictions (CC&Rs) but is it possible to just have Bylaws or do we need to get our paperwork in shape and get some CC&Rs written up asap? I am starting to learn the differences on what has to be vs should be in the CC&Rs vs the Bylaws etc., but it's still very confusing. Since we are relatively new to the 'hood, I don't want to create unnecessary conflict, but want to be properly armed with accurate information before going to the board and asking them to spend money on a lawyer.
TimB4 (Tennessee)
Posts: 21,059
Posted:
CC&Rs would be recorded with the County and be attached to your deed.

There are voluntary HOAs that are formed to maintain entrance signs or a community pool/park.

You should be able to obtain a copy of the CC&Rs (if they exist) from the County Courthouse or property office.
KerryL1 (California)
Posts: 14,550
Posted:
Could a community be incorporated and so have bylaws, but not be an HOA-type entity?
PaaN
Posts: 219
Posted:
OP,

NO, but go to your 'register of deeds' and CHECK FOR CCRs.

Kerry,

A community w/o CCRs 'could' have an incorporated HOA for 'whatever' reason.

Said corporation would have bylaws.

Said HOA would be voluntary membership.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
We have an old historic neighborhood that has restrictions. They are more architectural restrictions. They have by-laws which are internal to them. Not sure if they have CC&R's nor are they incorporated. Once you buy there you have to face the Board for any modifications to you house. Those include paint colors, façade changes, and additions. There once was a case where a full tear down of the home. The house had to be rebuilt to exacting standards of existing houses. Basically they had to build back an "Old house".

So if it is in a historic district they could have by-laws and a historic board. Runs similar to a HOA. Although in some areas those on the board could be from the City. That is due to let's say that area may be a tourist spot for the city. Our area is a historic tourist district. They do have some public events for fundraisers to keep care of certain areas within. Some of those may be gardens, the sidewalks, or preservation of an artifact.

Considering they do gather Public money, their incorporation status isn't necessarily non-profit. Also the homes being built before certain restrictions, CC&R's to be alike may not apply as readily. These houses are not "Cookie-cutter" type homes. So any HOA would be more of a volunteer/exclusive club type.

Each HOA is different. They aren't defined in black and white. Your HOA may be just by-laws. Doesn't make it less restrictive. Just may not make it where it effects the deeds or incorporated status.
Former HOA President
DouglasK1 (Florida)
Posts: 2,046
Posted:
Typically the CCRs (which could go under another name, such as Deed Restrictions, etc.) establish the association. To encumber a property such that it has to belong to a mandatory HOA, the document would need be attached to the deed. As PaaN mentioned, otherwise it is most likely voluntary and has no ability to require membership.

Here is how my association's CCRs establish the association:

ESTABLISHMENT OF HOMEOWNERS" ASSOCIATION OF XXX, INC.. There shall be established a homeowners' association, hereinafter sometimes referred to as Association, composed of record owners of each lot. The Association shall be the XXX, INC., organized and existing under the laws of the State of Florida. The Association shall administer the operation and maintenance of the common areas and property of XXX and other duties hereafter provided for. The Association shall have all the powers and duties set forth in this Declaration and in the Articles of Incorporation and By-Laws and as granted

and


1. MEMBERSHIP. Every person or entity who is a record fee simple owner of a lot in XXX, including the Developer at all times as long as it owns all or any part of theproperty subject to this Declaration, shall be a member of the Association, provided that any such person or entity who holds such interest only as security for the performance of an obligation shall not be a member. Membership shall be appurtenant to, and may not be separated from, ownership of any lot which is subject to assessment.
Escaped former treasurer and director of a self managed association.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Alexa,

Per WASHINGTON UNIFORM COMMON INTEREST OWNERSHIP ACT:

(4) "Association" or "unit owners association" means the unit owners association organized under RCW 64.90.400 and, to the extent necessary to construe sections of this chapter made applicable to common interest communities pursuant to RCW 64.90.080, 64.90.090, or 64.90.095, the association organized or created to administer such common interest communities.

(10) "Common interest community" means real estate described in a declaration with respect to which a person, by virtue of the person's ownership of a unit, is obligated to pay for a share of real estate taxes, insurance premiums, maintenance, or improvement of, or services or other expenses related to, common elements, other units, or other real estate described in the declaration. "Common interest community" does not include an arrangement described in RCW 64.90.110 or 64.90.115. A common interest community may be a part of another common interest community.
AlexaA (Washington)
Posts: 9
Posted:
Thank you for the replies. I am 100% sure that there are no recorded CC&Rs at this point. I checked with the president and the secretary and I think the general understanding of what the covenants are supposed to be just isn't quite there. A no-rental policy was implemented a few years back, when ownership of one house changed and renters were causing major issues. The vast majority accepted the vote (11-1), but other than writing up the no-rental policy and handing it to everyone in the HOA and informing prospective buyers at the time of any subsequent ownership change, nothing more formal was done at the time. I am all for the no-rental policy, but am concerned about it being properly documented, which according to my research should be addressed in the CC&Rs.

Again, we are the newcomers and some of the folks have been living there for 50+ years, so we don't want to stir the pot unnecessarily, but assuming I have the correct grasp on the situation, I think it's time to tackle this issue properly (with a lawyer), the catch being that I need to convince the board first that it's a necessary expense and this HOA stuff is all new to me

PaaN
Posts: 219
Posted:
Check with your Title Insurance Company about having a 'clear title'.

and:

? Does your deed 'reference' any 'restrictions of record' ?

? Does your deed 'reference' anything 'recorded' ?

? What did/does your attorney at the 'closing' say ?

? What did the Register of Deeds @ your county courthouse say ?

best of luck, and,

CAVEAT EMPTOR
TimB4 (Tennessee)
Posts: 21,059
Posted:
I would first check with the County to see if there are CC&Rs (look yourself).

AlexaA (Washington)
Posts: 9
Posted:
I did check online and also checked with the HOA president and the secretary and all their paperwork. I am 100% sure that there are no CC&Rs. That's kind of the point of this plea for help here. I have a hunch that the HOA has been very casually run and may have missed more than one thing that needs to be updated.

So the first thing for me to check is to see if an HOA absolutely has to have CC&Rs, in which case we would have to resolve the current HOA and start over from scratch since a major thing is missing.

If it IS possible to just have by-laws, but not necessarily have CC&Rs, it looks like we still need to write some up now and record them at the county, at the very least for the no-rental policy, assuming that can be done (adding without starting over)

Thanks!
PaaN
Posts: 219
Posted:
You need to actually check IN PERSON with your county's Register of Deeds for what (if anything) is ACTUALLY recorded in the 'deed books' affecting or restricting YOUR property.

Or have your attorney do so on your behalf, BUT, I would do it MYSELF.

It is possible that a severely dysfunctional HOA has no copies and even possible that their level of incompetence is so great that they are unaware.

CHECK FOR YOURSELF

If, I repeat if, there are NOT restrictions affecting YOUR property on file or recorded with the county THEN, and only then, are you 'free and clear'.

If there are, in fact, NO restrictions it would take 100% agreement to impose them upon homeowners.

GOOD LUCK - you have been led to the water trough (of knowledge) - drink up
PaaN
Posts: 219
Posted:
Quote:
Posted By PaaN on 08/15/2018 6:08 PM
OP,

NO, but go to your 'register of deeds' and CHECK FOR CCRs.

Kerry,

A community w/o CCRs 'could' have an incorporated HOA for 'whatever' reason.

Said corporation would have bylaws.

Said HOA would be voluntary membership.

NO to the title question
AlexaA (Washington)
Posts: 9
Posted:
OK, I will make a trip to the county just to doublecheck in person, too.

Is there somewhere where I can find documentation on needing 100% agreement to impose new restrictions / CC&Rs upon homeowners?

Thanks!
SueW6 (Michigan)
Posts: 814
Posted:
You can amend the bylaws - the part where is defines a "member" and put the rental restriction there, to say that the Member is defined as the homeowner and all members must live in the home.

PaaN
Posts: 219
Posted:
They are a contract.

A contract can NOT be unilaterally imposed upon an unwilling person.

The contract/covenant/restriction must be agreed to or previously recorded to 'encumber' a person or property.

This is common law 101 and is self evident just like 'the shortest distance between two points is a straight line'.

Else anyone could restrict your use of property w/o your consent.

If covenants/restrictions ARE recorded as PUBLIC documents then the buyer of the property agreed by virtue of SIGNING FOR the deed which references same.

If you find they are recorded but NOT referenced in your deed then, AND ONLY THEN, you may need to seek recourse via your Title Insurance Company and/or your 'closing attorney of record'.

D'OH
PaaN
Posts: 219
Posted:
Quote:
Posted By SueW6 on 08/16/2018 11:18 AM
You can amend the bylaws - the part where is defines a "member" and put the rental restriction there, to say that the Member is defined as the homeowner and all members must live in the home.


NOOOOOOOOOOOOOOOOOOO NOOOOOOOOOOOOOOOOOOOOO NOOOOOOOOOOOOOOOOOOOOOO

NO, you may not impose restrictions via the bylaws.

The bylaws govern ONLY the operation of the corporation.

ANY AND ALL restrictions MUST be in (or directly authorized by) the 'Declaration of Covenants and Restrictions' (CCRs) sometimes known as the 'Declaration'.
PaaN
Posts: 219
Posted:
note:

if there ARE CCRs, they can be amended via a % of membership stated in same
MarkM31 (Washington)
Posts: 494
Posted:
Quote:
Posted By PaaN on 08/16/2018 11:30 AM
note:

if there ARE CCRs, they can be amended via a % of membership stated in same

Or per state law, which ever is more stringent.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Alexa,

Are you in single family homes or a condominium?

Are you in an age restricted community?
GenoS (Florida)
Posts: 4,276
Posted:
Quote:
Posted By AlexaA on 08/16/2018 10:29 AM
I did check online and also checked with the HOA president and the secretary and all their paperwork. I am 100% sure that there are no CC&Rs.

The existence or non-existence of deed restrictions or covenants that run with the land are fundamentally connected with the rights of the owners. As such, you should have the advice of an attorney. If you make the determination that there are no CC&Rs and in the end you're wrong then you are in for a world of hurt. I would consider the positions of the president and secretary, yes, but I wouldn't take their word for it. And, quite frankly, if I were a homeowner there I don't know that I would take yours based on your say-so alone. I know you can't prove a negative, i.e. "There are no CC&Rs governing your property," but I'd want to have that from a licensed attorney, in writing, before I'd even begin to consider that it might be true.
MarkM31 (Washington)
Posts: 494
Posted:
And a title company
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By MarkM31 on 08/16/2018 3:11 PM
And a title company

Keep in mind that people are human and may or may not take the time to dig through records.

Our title company in TN failed to find the covenants and told us that there wasn't any. Knowing better, I said to look again and provided a copy I had received from the Association. Surprise, they found it on the second look.
AlexaA (Washington)
Posts: 9
Posted:
At this point it would be a welcome gift if some CC&Rs showed up mysteriously out of nowhere. The whole issue here is that we WANT to have covenants, but if we don't have any and we truly need to have 100% of owners agreeing on writing some up to make things official, then we have a problem. I don't think there is EVER a group of people able to agree on anything 100%.
AlexaA (Washington)
Posts: 9
Posted:
D'OH ..... Really???

Thanks for the great information, but if things were that elementary and obvious to anyone, I wouldn't have to work this hard to convince our HOA that there is a problem in the first place. I am not a lawyer, nor do I play one on TV, I am simply doing my due diligence asking anyone with more knowledge and experience with HOAs for a situation that is not widely documented, so I just don't think it's D'OH worthy.

You definitely sound like you know what you are talking about, but I do like to back up my requests with sources because common sense has long exited the building in America. Me telling our HOA president that PaaN said this is all common law 101 is just not going to cut it.

AlexaA (Washington)
Posts: 9
Posted:
Single family homes with some common areas, no age restrictions
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By AlexaA on 08/16/2018 9:06 PM
At this point it would be a welcome gift if some CC&Rs showed up mysteriously out of nowhere. The whole issue here is that we WANT to have covenants, but if we don't have any and we truly need to have 100% of owners agreeing on writing some up to make things official, then we have a problem. I don't think there is EVER a group of people able to agree on anything 100%.

Alexa,

Covenants are seen as a contract between homeowners.
Once established, the covenants will (should) have language on what it takes to amend.

If there are no covenants, a homeowner must agree to having restrictions on their property.
There are developments where covenants don't apply to various lots.
It's rare, but it does happen.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By AlexaA on 08/16/2018 9:32 PM
Single family homes with some common areas, no age restrictions

If you have common area, it's more likely that there are covenants.

PaaN
Posts: 219
Posted:
Quote:
Posted By TimB4 on 08/17/2018 3:37 AM
Posted By AlexaA on 08/16/2018 9:32 PM
Single family homes with some common areas, no age restrictions


If you have common area, it's more likely that there are covenants.


KerryL1 (California)
Posts: 14,550
Posted:
Agree with Tim & Pain. For now, how do you know there are common areas? Are they written down and described in detail somewhere? What is the name of that document? Who takes care of the common areas? How are the caretakers paid? What' in/on these common areas?
AlexaA (Washington)
Posts: 9
Posted:
The common areas are addressed in the Bylaws, saying that all members of the HOA bear the responsibility for the maintenance of the community property equally. And we do, both hands on and financially. Any expenses we have get paid out of our annual HOA fees. It's just all very casual. The HOA president is going to have a free consultation with a local real estate lawyer to get legal backup before talking to the rest of the HOA members and then we will decide on what we want to do going forward.
MarkM31 (Washington)
Posts: 494
Posted:
Who is the named owner of the common property?
AlexaA (Washington)
Posts: 9
Posted:
The community HOA is the listed owner and taxpayer.
GeorgeS21 (Florida)
Posts: 3,808
Posted:
Very unusual by laws?

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