Can We Legally Transition from Declarant/Developer

Our By-Laws currently state that the declarant control period shall be ten years or settlement of 100% of the lots and uses the language "on the earlier of". Based on this I'm assuming since ten years have passed the declarant control period is officially over. I've included the specific language below. Wanted to hear from others what they think, based on this language can a good attorney help us transition power from the declarant?

Language from By-Laws

1.17 Declarant Control Period. "Declarant Control Period" shall be the period beginning upon the recordation hereof and terminating on the earlier of (a) ten (10) years thereafter, (b) the settlement of one hundred percent (100%) of the Lots permitted for the Development to parties other than the Declarant; or (c) at such earlier time as specified in a written instrument in recordable form made by Declarant and delivered to the Association.

Under voting rights it states that "The Class B member shall be the Declarant who shall be entitled to three votes for each Lot owned. The Class B membership shall cease and be converted to Class A membership on the happening of either of the following events, whichever shall first occur:
(a) The expiration of the Declarant Control Period; or
(b) When the Declarant, in its sole discretion, determines to withdraw from Class B membership in the Association and so notifies the Association in writing.

James,

Based on what you provided, I agree that the declarant control is over.

My suggestion is to:

1) gather support from other members who are willing to do the work of running the Association.
2) approach the declarant (in writing) and request that they honor the terms of the declaration and transition control of the Association to the membership.

If the declarant declines, or makes no attempt at transitioning control, then the members will have to band together, pay an attorney and take the issue to the courts.

Note: Be ready for transition responsibilities.

See:

Here is some info:

Best Practices - Transition from the Foundation for Community Association Research (pdf document)

Transistion Plan an HOA's formalized plan for transition.

Developer/Homeowner Transition: A Guide To Success

Developer Transition in a Community Association

Developertransition.com This website is intended to specifically address the issues facing townhome, condominium, and homeowner associations in North Carolina. [still has good general information as well]

Subject: HOA transition from developer control to homeowner control Thread in HOATalk that discusses having a Transition Study done by an engineering firm.