MANDATORY MEMBERSHIP IN HOA (where it is currently voluntary)

I hope some of the lawyers on this forum respond, and can perhaps site case law.

BACKGROUND: We are a large, voluntary HOA (2200 lots) in NM with 35 sets of covenants (35 units). Each area was set up as a "unit," and their covenants written, some as old as 40 years ago, before HOAs generally made membership mandatory. Approximately 25% of the property owners are not members of the HOA. The HOA could do a lot more if it had full membership. Nonmembers are, for the most part, getting all the benefits of membership, although the BOD is finally understanding that it cannot continue to provide the same benefits to everyone, member or not. There are legal issues that affect everyone; thus, the dues-paying members (dues are only $96/yr)are paying for everything the HOA does. Example: Fighting to get a piece of land declared open space. (That takes money, and the HOA is spending the dues to do that. It would be nice, since that would benefit everyone, if everyone were a member, so that we had the capital to do what needs to be done.)

PRESENT SITUATION: With the exception of one unit, none of the covenants for the other units specify that each property owner must be a member of the HOA. Our association attorney is questioning whether we would be allowed, in each unit, of course, to pass an amendment to the covenants to make membership mandatory. The attorney's logic is: Covenants address what you can and cannot do relative to your property. Therefore, membership in an association has nothing to do with your "property" per se.

WHAT TO DO AND IS IT LEGAL: Each unit's covenants specify what needs to be done to amend them. If a unit got the requisite votes to make membership in the HOA mandatory, (1) Would it be legally binding? (2) Would present non members be grandfathered or would they be required to join? (3) What types of legal challenges could/would there be to such an amendment?

We would love to have 100% membership. But even in this upscale community, you have people who won't join.

I eagerly await your comments.

There are many problems with these quasi HOA's. When the community association idea was presented by the developers most of the covenants were hard to enforce because they did not run with the land. As the years go on the HOA's find, as in your case, that expenses out way income.

IMO, each unit should have a information meeting. Knock on doors to get the Ho's to attend, and present your case. Your doc's may not specify 100% to change the doc's but you will need it. No one can be grandfathered, or be required to join, this is where the suits stem from.

There is a case that was settled in FL recently. The HOA got 2/3 vote to change the doc's. 285 homes, 36 Ho's challenged. The Ho's won in Superior Court. The HOA has to release all liens, pay the HO;s legal fees and pay monetary damages. The HOA is on the verge of bankruptcy, 3 years after settlement, and 2 weeks ago 52 homes were for sale in the development.

There are many cases of a non mandatory HOA's trying to convert to mandatory as your attorney will find. It is a very long and expensive road.