HOA decided to no longer pay for limited common areas. Help with CCR interpretation.

Welcome Tyler.

Can you provide the section of your CC&Rs that describes what needs to be done to make an amendment?

Thanks.

Sure! It's a little long, as expected. Sorry for the dense text.

" ARTICLE Xl
ADDITIONAL RESTRICTIONS
Section I l. I Restrictions Vpqn Association and Owners. Unless at least sixty-seven
percent (67%) ofthe Eligible Mortgagees (based upon one (l) vote for each Lot encumbered by
a First Mortgage) and the Owners (Other than Declarant) by vote or agreement Of Owners Of Lots
of which at least sixty-seven percent (67%) of the votes in the Association are attached, have
given their prior written approval, neither the Association nor the Owners shall be empowered or
entitled to do any of the following:
(a) by act or omission, seek to abandon or terminate this Declaration or any
scheme or architectural review, or enforcement thereof, as set forth in this Declaration, regarding
the architectural design, exterior appearance, or exterior maintenance Of the Lots, Improvements
thereon, or the Common Area, or the maintenance of the common property, party walls or
common fences and roads, or the upkeep of lawns and plantings of the Project;
(b) by act or omission, seek to abandon, partition, subdivide, mortgage,
encumber, sell Or transfer any of the Common Area, except for the granting of utility easements
as provided by Section 2.5(a) Of Article II hereof; any conveyance or encumbrance Of the
Common Area shall also comply with voting requirements of C.R.S. 38-33.2-312;
(c) fail to maintain full current replacement Cost, fire, and extended insurance
coverage On the Lots and Common Areas, and such other insurance as is required under this
Declaration;

(d) use hazard insurance proceeds for loss to the Improvements for other than
repair, replacement or reconstruction of such Improvements as herein provided;
(e) change the method of determining the obligations, Assessments, dues or
other charges which may be levied against an Owner, or
(f) a material change in any Of the following provisions of this Declaration:
voting rights; Assessments, Assessment liens Or the priority of Assessment liens; reserves for
maintenance, repairs, and replacement of Common Areas; responsibility for maintenance and
repairs; reallocation of interests in the Common Areas, or rights to their use (except as provided
in Article VI', Section 7.13 herein); redefinition of any Lot boundaries; convertibility of Lots
into Common Areas; expansion or contraction of the Project, or the addition, annexations, or
withdrawal of Property to or from the Project; insurance or fidelity bond; leasing of Lots;
imposing Of any restrictions On an Owner's right to sell or transfer his or her Lot; a decision by
the Association to establish self-management when professional management had been required
previously by this Declaration Or by a First Mortgage holder; restoration or repair Of the Project
(aner a hazard damage or partial condemnation) in a manner other than that specified in this
Declaration; any action to terminate the legal status of the Project after substantial destruction or
condemnation occurs; or any provisions that expressly benefit First Mortgage holders, insurers,
or guarantors.

Section 12.6 Amendment and Termination Subject to the provisions Of Article Xl
herein, any amendment to this Declaration that would terminate the Declaration shall require the
affirmative vote or written consent Of the Members to whom at least eighty percent (80%) Of the
votes in the Association are allocated and, during the Development Period, the written approval
of Declarant. Further, any termination of this Declaration and the planned community created
hereby, must be in accordance with C.R.S. S 38-33.3-218. Except as provided in the foregoing,
and subject to Article Xl, this Declaration may be amended by the affirmative vote Or written
consent Of the Members to whom at least sixty-seven percent (67%) of the votes in the
Association are allocated and, during the Development Period, with the additional written
approval of Declarant. Notwithstanding the foregoing, Declarant shall have the unilateral right
during the Development Period to amend this Declaration for the following matters: (i) creating
new Common Area (ii) changing a Common Area to Limited Common Area; (iii) recording new
plats or new certification Of plats pursuant to C.R.S. 38-33.3-209(6); (iv) to exercise any
Development Rights established by this Declaration; (v) to add unspecified real estate to this
Declaration; and (vi) and for any other reason permitted under the Act.
An amendment to this Declaration shall be effective only upon the Occurrence of all of
the following events:
(a) The amendment shall have been reduced to a writing, which writing shall
have been approved (by an affirmative vote or written consent) by the applicable required
percentage Of Members and, if applicable, Declarant and the Eligible Mortgagees;
(b) A written certificate executed and acknowledged by the president Or any
vice president Of the Association, shall be attached to the written amendment which shall State
that such amendment was approved by the applicable required percentage of Members,
Declarant and by all Eligible Mortgagees, if any, who are required to approve such amendment
pursuant to Article XI; and
(c) The approved written amendment and the certificate described in (a) and
(b) above shall be recorded in the office of the Clerk and Recorder of the County in which the
Property is located, and indexed in the Grantee's index in the name of the Project and the
Association and in the Grantor's index in the name of the person executing the amendment.
(d) It will be a presumption subsequent to the recording of an Amendment to
this Declaration that all votes and consents required to pass the same pursuant to this Declaration
were duly obtained (at a duly called meeting of the Association, in the case of votes). Such
presumption may be rebutted by an action commenced within one year from the date the
amendment is recorded; in the absence of any such action, such presumption shall thereafter
become conclusive.
"

Welcome to the forum, Tyler. Our HOA is dealing with this topic right now, but our CC&Rs in a section similar to yours use the term "exclusive use common area," i.e., your "limited use common area." But 5.1 does not refer to the components on that list as "limited use common areas" and include components that typically are simply common areas. Does your declaration have definitions somewhere for each?

CC&R "Section 5.1 Association Maintenance Association shall provide such maintenance and repair in a first class condition as follows: (a) Paint, repair, replace, maintain and care for... including without limitation, decks, fences, and patios of the Townhomes."

Looks to me like the HOA is obligated to repair, etc. your decks & patios. some in our HOA that ours make those the Owners' responsibility. The trouble with them being the HOA's obligation as Sheila points out is that Owners can do whatever they wish to them including abuse them, neglect them, get them water-logged (IF wood decks), etc. But still your CC&Rs make them your HOA's responsibility. One way to protect against abusive Owners is to have strict rules about deck maintenance that do not comfit with 5.1, i.e., no deck can be completely covered with carpeting, plant must be in pots of adequate size, which set reservoirs to keep water off of decks, etc.

Even though the language seems clear, you & several Owners should hire an HOA attorney for their opinion and to make sure no other sections of your declaration are left out.

4.15 does not apply to original patios & decks.

CO "(3) To the extent required by the declaration:" is key and yours has no such requirement. In addition, the list above does not seem to be limit common areas.

Your board, imo, is trying to pull a fast one due, most likely, to a shortfall of reserves needed to repair replace all the components listed. Take a look at your reserves study.

Amendment sections seem to show 67% of owners must approve.

4.15 includes two terms: Common Areas and Maintenance Areas.

These ought to be defined somewhere in you docs. Can you provided those definitions?

Thx.

All units have patios, not all units have decks. Thanks.

Hi Tyler

I've seen many CC&Rs, but never one that said that the HOA would maintain and repair things in a "first class condition." See 5.1. A standard like that is wide open for dispute. To me, "first class" is the best there is as long as I don't pay for it. Maybe to you, "first class" is the best available as long as it doesn't cost more than 50 cents. Are we ever going to come to an agreement on what the standard is? It's bizarre that this kind of language would be put in a declaration that requires a 2/3 vote to change.

That's for starters. I see a lot of contradictory language in your CC&Rs. Very easy to interpret differently. Unfortunately, it's written so it will seem appealing to homeowners, but puts a ton of power in the hands of your BOD.

Unlike others here, I'm going to play devil's advocate. I'm looking at things from the perspective of the BOD members only. And what I see is - The opportunity to interpret your CC&Rs the way your BOD has.

Per 1.15, everything on your lot on the exterior of your home is part of the Maintenance Area that the HOA is responsible for maintaining and repairing.

Per 4.15, your BOD has the exclusive authority to subject anything on your lot as an Individual Purpose Assessment. The example of a pergola is nothing more than an example, and as stated in 4.15, it is not a limitation. So why not everything on the exterior of your house?

So looking at things from the perspective of a BOD member whose house doesn't have a lot of extras and doesn't want to pay for maintaining and repairing those extras on other houses, I can see where this would be a cool way to not get blamed for raising fees, or to charge more money in assessments to anyone who has a deck for example if not all the houses have decks.

If I was looking to challenge this setup, I'd look to 2 things:

1. Adequate notice. Maybe the BOD had the right to make the changes, but not the right to implement those changes without prior notice.

2. Uneven application. If 80% of the houses have patios and 85% of the houses have decks, then was there a fair and reasonable basis for making patios IPAs but not decks.

But that's about all I see. Your BOD appears to have the authority. They didn't write your CC&Rs, so they can't be responsible for what your CC&Rs say, and you signed on to the deal when you bought your house.

IMO, your BOD has the authority to designate anything that's a Maintenance Area as a Limited Common Element.

If you can get enough support among your neighbors, maybe it's time for a new BOD.

NpS has a great response!

You said the Board has had a discussion with the homeowners about the costs, which you agree is getting really expensive, and they decided maintenance of patios, decks and that stuff would be turned over to the homeowners. Have you spoken to your neighbors to see how they feel about this? If they agree with this becoming homeowner responsibility, all of you should be able to ask the board to come up with proposed amendments to the CCRs to this effect and then the homeowners can take a vote. If you vote for it, fine, bu if not, that's ok, too.

As for the cost, you know your personal budget better than anyone, so you also know that some home maintenance jobs are more costly than others. This can be an advantage of living in a HOA - the owners pay assessments to pay for this and you may get cost savings because you buy in volume. However, this also requires adjustments to the assessments to ensure these things can be fixed in a timely manner and as you know, most people don't like assessment increases. Even if the increase is to pay for certain improvements the community really needs.

So, if you don't want a situation where the HOA decides how much to pay for a repair and then bill you, it's best to turn that responsibility over to individual homeowners like youself. Then you can decide when to get the work done, who will do it and how much to pay. That's life as a homeowner. If the Association is going to pay, there are times when the board has to set spending priorities and sometimes the work you want done may have to wait until something more pressing (e.g. street repair) is done first. If you don't want to wait or have an issue with whoever they pay, this may be an option for your community to consider. If you have a better idea to control costs, bring that to your board and see what happens.

It might not be an issue to you, but it might be an issue to your BOD. Depends on what kind of complaints they get when they don't take care of certain things. I'm sure there are many people in your community who would disagree that "safe" is equivalent to "first class."


Sure, you can read that sentence as a limit on the first paragraph of 4.15. But as devil's advocate, I say your interpretation is incorrect. While Common Areas and Maintenance Areas are defined terms, "regular planned ..." is not defined and the BOD has the right to make decisions within its sole discretion. So once again, we have a dispute over what the words mean.


If some have a patio and and others don't, I can see support for the BOD's approach. Same for driveways. Personally, I think this is a nightmare to administer, but that's not the question. The question is "Can your BOD get away with doing it without a homeowner vote?" Depends if you can motivate enough of your neighbors to push back.


Agreed.

It's a nuanced distinction, but important one, "not safe" being equivalent to "not first class" is not the same as "safe" being equivalent to "first class". A better way to think about it is to be "first class" it must be AT LEAST "safe" which I think we all agree with.

You have a point there, "regular planned maintenance" is not specifically defined. To get an idea of it's meaning, perhaps one would look at a section titled "Maintenance", with a sub-section titled "Association Maintenance", i.e. section 5.1a. I think we'll have to disagree here.

Ok, it should be a homeowner vote - so why haven't you and your neighbors gone to the board together and asked about this, pointing out the relevant portion of your documents? I don't see where you did that, although you're upset about this not being put to a vote.

Even more to the point, what solution have YOU suggested to control costs? You said the board said someone needs to come up with an alternative, so it would behoove you to come up with some suggestions for the board to consider so a vote won't be necessary. If the suggestions aren't practical or they don't work, you know what the alternative is and can take an informed vote.