Warrenty Deed vs Title

Started by RebeccaA6 • 14 replies • 642 views

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RebeccaA6 (Arizona)
Posts: 31

Posted:

I am on a small LOA in New Mexico.

Our developer has written a warrenty deed and filed it with the clerks office giving our association granted ownership of the community well. The document reads "until it is no longer needed."

It also states that the developer requires the associaiton to pay for the electric costs.

Some think that the well property is titled to the association. But it clearly states until which time the association non longer needs it.

Is there a difference between warrenty and titled deed?

SheliaH (Indiana)
Posts: 6,964

Posted:

Warranty generally means someone will pay for repairs (and sometimes replacement) of something for X amount of time, whereas a deed (or title) is issued to someone when they buy something.

In this case, the developer gave a deed to your community, but the warranty (poorly written in my opinion) may have meant the developer would take care of maintenance and/or repairs to the well until the homeowners take over the community and then it becomes the association's responsibility.

You may want your association to have a look at your documents as well as this warranty to see what's going on. In fact, I notice you've posted several subjects on your association which look to me like no one's quite sure what the hell some of the citations mean. Maybe it's time for the board to meet with the attorney to review everything so they can see what's in there, what may need to be changed and how to go about doing that.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

RebeccaA6 (Arizona)
Posts: 31

Posted:

Thanks for answering.

There has been a hostile takeover by someone who thinks they are a real estate attorney. We are just trying to preserve out little association until such time we can take it back.

This person has just gone in and taken over, there are some that fear this person. The person has not tried to discuss what the issues are and had a full board input. They have decided that the only answer is theirs.

Such as do all LOA documents need to be kept in New Mexico? The NM statute says that the secretary must keep documents for 5 years. They are insisting because I am on the board that any documents I have are to be kept in NM. The documents I have are copies of what was sent out to the land owners, I am not the secretary. Instead of asking, they demand to have our personal documents turned over.

We believe the main objective is to take over the checking account and spend what they want out of it without LOA owners having a say. Which is how the association has been run. No one person can spend over the budgeted amount without general membership approval.

I am just looking for a little history and back up before I head into the lions den. Fortunately, I have thick skin.

Some of us asked to have an lawyer look at these issues but this person seems to think she knows the law better than anyone else.

I do appreciate any input I can get.

SheliaH (Indiana)
Posts: 6,964

Posted:

What do you mean "take back your association"? Is it still under the control of the developer or in receivership?

You don't say what LOA documents or LOA owners are either - are these folks who own property in the community, but live elsewhere? As for the documents, I would think they need to be stored in a place where they can be secured and easily accessible. If the community is in New Mexico, somewhere in New Mexico would be a start. As for these personal documents, what do they have to do with the association? Until you get a response that makes sense, I'd hang on to what I have.

I believe one of your posts mentioned there were 30 lots, meaning there are at least 30 homeowners, so if the rest of you don't like this guy, you should have numbers on your side if you all rally together. For that matter, it may be the rest of the board has to go if they've just sat there and let this guy run the show.

As you might guess, this won't happen overnight and won't be easy, but you have a start if there are others who've asked about getting an attorney but were told no. All that means is that the real estate attorney thinks he knows everything, but there are nuances to running an HOA that he doesn't know the first thing about. You don't wait for his answer - the rest of you get together, go to your own attorney and see what's what.

From there, come up with a strategy to give this guy the heave-ho and use it. Just make sure you have people ready and willing to take over - one of them may have to be YOU. If you don't live in the community, you will need to find a way to spend more time there to keep an eye on things because no one will care about your property more than you. Decide right now what you're willing to do and how far you're willing to take it. Good luck!

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

MarkM31 (Washington)
Posts: 494

Posted:

Shiela, you are confusing warrenty with warrenty deed.

MarkM31 (Washington)
Posts: 494

Posted:

Quote:

Posted By RebeccaA6 on 03/04/2019 7:15 AM

Is there a difference between warrenty and titled deed?

A warrenty deed is a type of real property title deed. The other primary type being a quitclaim deed, but depending on your state, there could be others.

Without know much of the particulars, it is hard to give a direct answer. It also depends on where the well building is located, it might mean that if your HOA becomes part of a larger public water district that the well building can revert to the previous or adjoining owner, but there is a lot left unknown from your question.

RebeccaA6 (Arizona)
Posts: 31

Posted:

We have a well that sits on a piece of property that is owned by the subdivider. They have given us use of the well until such time as we do not need it. But our association has to pay the electric an repairs.

The well was done in a warrenty deed.

MarkM31 (Washington)
Posts: 494

Posted:

Have you read the documents? A warranty deed means that ownership has been transferred. The HOA owns the land.

How big is this individual parcel, and how many homes does the well serve?

RebeccaA6 (Arizona)
Posts: 31

Posted:

It is on a small piece of property that serves two other facilities.

There are 11 full time owners and 5 who still haul water.

Actually, the subdivider has filed the an amended document saying that "no contractual agreement of transfer of ownership of land where well sits or name change with the state license of well ever occured, the well and parcel o land on which the well is located is still in the ownership of the developer."

"The land owners association has been the sole user of the well since 2007, the electricity provided by Socorro Electric, serving the well and building on Out Parcel shall be the responsibility of the landowners association. In the event that the Out Parcel building is being used on a full time basis, or sold, a new meter shall be installed for well use only."

This amended document takes away the granted ownership and ingress and egress stipulations. I agree with this but the others on the board do not. They say because our association did not sign them they are not legal.

The documents have been filed in the clerks office and notorized. So they are saying that the ammendment is invalid.

MarkM31 (Washington)
Posts: 494

Posted:

Talk to a local lawyer

LetA (Nevada)
Posts: 2,679

Posted:

Quote:

Posted By RebeccaA6 on 03/05/2019 7:48 AM
We have a well that sits on a piece of property that is owned by the subdivider. They have given us use of the well until such time as we do not need it. But our association has to pay the electric an repairs.

The well was done in a warrenty deed.

That Sheds a bit more light on the subject. How many houses will have use of that water well? and are you on a community septic system or individual septic tank.

I actually have a bit of personal experience in this.. After having a paid off home in the Po-dunk suburbs back east, the town decides they want a cushy deal with the BIG city water department.
I was on well water and had a septic tank. I was assessed a mandatory $1000.00 per foot frontage. No more well water, no more septic system Hello mortgage and water and sewer bill.

fee fee fee fee fee fee fee fee

RebeccaA6 (Arizona)
Posts: 31

Posted:

There is one home and an office that are there a few months out of the year. The well serves these two buildings and the subdivision. The well agreement says that the LOA has to pay maintenance and electricity. It also states that the well will be given back to the developer when it is no longer needed with an 80% of the membership votes.

JimC23 (Nevada)
Posts: 13

Posted:

Your association currently has title to the well. The developer has a 'reversionary interest' in the well -- in other words, the developer can take back the title whenever the specified condition isn't fulfilled -- in this case, when it is 'no longer needed'.

It's clear that if you don't pay for electricity and repair costs, it would be easy for the developer to show that it is no longer needed and he/she could easily recapture title at that point. Otherwise, I think it would be relatively easy to justify it is still needed, so long as it's being used for something (e.g., any plantings nearby that need water).

It appears that your association didn't sign anything related to that amended document the developer filed, so in essence that association didn't agree to anything that was filed. The developer might be able to file anything he/she wants and have it recorded, but that doesn't mean it's binding on your association.

RebeccaA6 (Arizona)
Posts: 31

Posted:

So could the developer take it back?

JimC23 (Nevada)
Posts: 13

Posted:

Quote:

Posted By RebeccaA6 on 03/07/2019 6:38 PM
So could the developer take it back?

Yes, if that condition ever happens, i.e. once the well "is no longer needed". That's what this particular reversionary interest does. But as long as the well is still needed, and as would be demonstrated by your continued maintenance and payment of the electric bills, along with continued use of its its water, it shouldn't be an issue. As mentioned upthread, talk to a local lawyer if you have concerns.

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