We have an HOA but no recorded covenants

Started by RjF1 • 7 replies • 601 views

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RjF1 (Florida)
Posts: 3

Posted:

I’m in a small new townhouse development. The HOA is incorporated but the draft covenants given to us at closing were never recorded with the county. The developer who is currently running the HOA is pretending that the covenants are final! He is making no move to get the residents to sign the covenants and get them recorded. What do we do? We have lawyers, who all say there is no case law on this particular situation (forgetting to record). The residents agree that we want a fully functioning HOA.

SheliaH (Indiana)
Posts: 6,964

Posted:

If the developer hasn't turned over the community to the homeowners, there may not be anything you can do for now. Usually, developers wait until the community is built out and houses sold before that happens. Sometimes it happens sooner than later, especially when the homes don't sell as the developer wants and he/she either gets out when it's 75% sold (like the developer in my townhouse community) or goes bankrupt (like the other developer of my community!)

You might check if the residents can go around the developer and sign the covenants themselves and get them recorded (ask your attorney about that), but covenants only dictate how the common areas are used. If you want to actually have a say in the community you'll need bylaws - and the developer will have to either grant you that say or you find another way to get rid of him. Again, all this looks like you'll be in limbo for a while....

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

RjF1 (Florida)
Posts: 3

Posted:

In Florida, we have a statutory 90% rule for turnover to residents unless they choose to turn it over sooner. At this point though, they did not finalize the covenants when they platted. So the HOA has no mission, nothing enforceable, no legal basis for collecting dues. Technically, I have no restrictions on my property! I can always “pretend” like the developer is doing. Yes, seems like limbo. I think the value of the house is diminished so I filed a claim with the title insurance. They do not agree with me.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Wow. A lot of assumptions or wishful thinking on your part here? You keep referencing a "Pretend" HOA. That's not accurate. The developer is in control and makes the rules for now. Once it goes to the owners the documents get filed. No one signs anything except for making changes. There is no form you fill out or "sign". Once filed you all follow. (Till you vote to make changes and file again).

Why make a claim at all? Are you wanting to find a way not to pay dues? House values are REAL #'s. HOA's keep the homes attractive to potential buyers to get the price one wants to sell their home at.

I'd recommend you slow your roll till things are finalized. Otherwise, your just spinning your wheels...

Former HOA President

RjF1 (Florida)
Posts: 3

Posted:

I’ve been told covenants follow the land. They must be in place before the land is sold. I’m not talking HOA, I’m talking CC&Rs. And I have been paying the dues that they ask for, so simmer down. No doubt you feel you’re an expert. If I sold my house today with no covenants, the new buyer would never be required to sign covenants or join the HOA. It’s not attached to the land.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Again there is no signing of the Convents. Doesn't happen. Once filed and recorded that is it. A HOA is simply a Homeowner's Association of the members running the place like a "club". You sell your property some states (not all) require the seller to pass on the covenants, bylaws, and articles of incorporation at closing. So you simply hand over the documents to the buyer just like the developer did to you. Again NO signing!!!

Former HOA President

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Well........
You could simply file the CCR's yourself with the county for $25.

I'm sure your deed says you must follow the CCR's, bylaws of the HOA, blah, blah, the only issue it seems that they are not recorded? Record them.

GenoS (Florida)
Posts: 4,276

Posted:

FS 720.301(4) says,

“Declaration of covenants,” or “declaration,” means a recorded written instrument or instruments in the nature of covenants running with the land which subject the land comprising the community to the jurisdiction and control of an association or associations in which the owners of the parcels, or their association representatives, must be members."

Covenants that aren't recorded with the county aren't covenants at all. FS 720.303(1) further amplifies this.

Sounds like you need a good lawyer.

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