Property removal from subdivision

Started by DanielS15 • 6 replies • 328 views

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DanielS15 (Georgia)
Posts: 48

Posted:

Hello!
We are in the process of renewing our covenants (previous admin allowed them to expire). During this process we have had a question come up concerning the sale of a particular property. The question is whether or not a buyer of this property can actually "remove" the property from our subdivision and add it to a newly proposed subdivision (this property backs up to the other proposed subdivision).
I understood that once a subdivision was laid out (tract, district, section, etc) and the HOA was established with bylaws/covenants, removing property from the subdivision could only happen if the HOA was dissolved.
We are working with an attorney and their take on this is that without covenants this "removal" could be possible.
I'm not sure I totally agree.
Any help you can offer will be greatly appreciated.

TimB4 (Tennessee)
Posts: 21,059

Posted:

To me, if your covenants truly expired, then that property is free and clear of any Association deed restrictions. Therefore, they are free to do as they desire.

If it was my property, I wouldn't sign up with any Association.

When you rewrite the covenants, only those who agree to the covenants will have them attached to their deeds (as you can not attach new deed restrictions without the permission of the current owner).

Does your Association have common (private) roads to maintain? This could benefit you, as you can make a private road agreement.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

I find it strange the CC&R's would expire. It's more likely the Articles of Incorporation would. Plus are they not tied to the deed of the property? Their lot would be included in the # of lots the HOA is made up of. It would change the amount of dues everyone would pay into the HOA if they were to pull out. You and your neighbors would be paying more dues to make up the difference of one less property.

Former HOA President

AugustinD
Posts: 1,027

Posted:

Quote:

Posted By DanielS15 on 11/03/2022 2:02 PM
Hello! We are in the process of renewing our covenants (previous admin allowed them to expire).

Can you post the exact reasoning you are using to conclude that the covenants have expired?

In other words, why is it you think the covenants did not automatically renew per Georgia GA Code § 44-5-60?

How many lots are there?

Some background appears here: https://www.hoatalk.com/Forum/tabid/55/forumid/1/postid/247920/view/topic/Default.aspx

DanielS15 (Georgia)
Posts: 48

Posted:

Our covenants were written in 1988 - before GA Code was revised to include the "auto renewal". Since our discussions started in 2018 we have had four attorneys explain to the Board that the covenants expired after 20 years.

We have only 59 lots.

I'm quite puzzled as to how a piece of property could be "removed" from our subdivision.

AugustinD
Posts: 1,027

Posted:

Quote:

Posted By DanielS15 on 11/03/2022 5:36 PM
Our covenants were written in 1988 - before GA Code was revised to include the "auto renewal". Since our discussions started in 2018 we have had four attorneys explain to the Board that the covenants expired after 20 years.

From https://www.luederlaw.com/are-your-covenants-at-risk-of-expiring/, I agree that restrictive covenants expire. But not all covenants are restrictive. From the latter site:

In 2002, the Georgia Court of Appeals concluded that affirmative covenants are not subject to Code Section 44-5-60 [Aug edit: referring to the pre-1993 version of Georgia statute section 44-5-60, I presume] and thus do not expire.

From the net:

Restrictive covenants refer to how a parcel of land may be used.

Affirmative covenants require a lot owner owner to make payments, provide services, or render some other performance.

Do your covenants require the payment of assessments? If so, then it appears to me that this covenant (for assessments) is not extinguished.

What have your four attorneys said about affirmative vs. restrictive covenants?

AugustinD
Posts: 1,027

Posted:

From a few months ago:

Quote:

Posted By DanielS15 on 07/12/2022 5:57 PM
We have a very small community (47 property owners) and would like to start a HOA website. Since we are so small, with no amenities, our cash flow actually just covers expenses. Any recommendations for low, or no, price sites to help us with a website?

Uh oh. Sounds like there is some common area being maintained. Guess who owns this common area? The HOA corporation. Guess what does not dissolve just because restrictive (and not affirmative) covenants expire? The HOA corporation.

DanielS15, have you checked the HOA's property tax bill recently? Who is paying this bill?

I suspect any lot owner that wants to opt out of the HOA is out of luck.

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