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Amenities for non-members

Started by DanielS15 • 17 replies • 332 views

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DanielS15 (Georgia)
Posts: 48
Posted:
We recently began a process of the re-instatement of our expired covenants (with the help of an attorney). The covenants we are re-instating are exactly as originally written.
Some folks are not wanting to sign up for the re-instatement but they still feel that they are entitled to all the privileges and amenities of those that have signed up. Their reasoning is that since they still have to pay the annual assessments (affirmative covenants) that they should still be able to access the amenities.
Our attorney stated that those not signing should not have access to any of the amenities.
We currently have nearly 85% back on board and feel pretty good about that.
Any thoughts on what we can do with the 15%?
KerryL1 (California)
Posts: 14,550
Posted:
Please cite the document that states only those who "sign up" for a restatement of the ovens may use the association's amenities ?

What does "sign up" for the restatement mean? Don't owners have to vote by some sort of ballot to restate your covenants? OR are you saying a restatement requirements 100% of Owners t be approved?
CathyA3 (Ohio)
Posts: 6,299
Posted:
What percentage of "yes" votes do you need to approve the re-statement? In many states/communities, it's a super-majority of 67& or 75%. It's seldom unanimous approval except in certain situations: eg. changing how assessments are calculated, or purchasing/selling assets of the association.

As I'm sure you're aware, the CC&Rs apply to all members of the association. This means that, if the re-stated CC&Rs are approved, all members regardless of how they voted are entitled to all of the rights of membership, including use of the amenities.
DanielS15 (Georgia)
Posts: 48
Posted:
Our attorney sent out a package that included a letter of explanation, the original covenants, and a consent form to have them re-instated. This package was mailed to each property owner.
I have nothing other than the statement from the attorney concerning the amenities. The thought process, as I understand, is that those that are no longer a member of the POA should not have voting privileges nor use of the amenities.
CathyA3 (Ohio)
Posts: 6,299
Posted:
And wow, if that's what your lawyer said about amenity use, I'd question whether or not you heard him correctly. I really hope you misunderstood or he explained things poorly.

One of the guiding principles of HOA membership is that the CC&Rs apply to all owners. It's certainly possible to charge usage fees for things like renting the clubhouse for a private function. But that has nothing to do with how the person votes.
MaxB4
Posts: 3,513
Posted:
Is this a mandatory HOA or Volunteer HOA?
CathyA3 (Ohio)
Posts: 6,299
Posted:
OK, now I get it. If someone is not a member of the POA, then of course they shouldn't use the amenities unless you're operating a facility that is open to the public. If you charge something like an annual fee to the membership to cover costs, and somebody sells their home mid-year and thus is no longer a member, then the unused portion of the fee should be refunded.

But again this has nothing to do with how they voted about re-stated CC&Rs. The CC&Rs are attached to the deed of their home, and voting against amended CC&Rs does not change this. The newly re-stated are legally enforceable regardless of whether they voted yes or no or abstained from voting.
DanielS15 (Georgia)
Posts: 48
Posted:
Our attorney stated that all property owners needed to be notified and that we may end up with some not wanting to sign up for the re-instatement. This, as we were told, is pretty common and we could end up with a patchwork community (some members and some non-members of the POA).
We were not given the option of voting.
For what it's worth - we're in Georgia.
DanielS15 (Georgia)
Posts: 48
Posted:
It was originally set up as mandatory.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Something seems like it is missing here. Maybe it is just me, but why are you reinstating the CC&R's? Usually once on file they stay on file. It may be the Articles of Incorporation that may need updated to keep incorporated. If not, then your HOA loses the ability to collect dues for the amenities/operations. The CC&R's are the property restrictions. Which go with the title of the land. Usually only sign something if you are updating them and filing the changes.

So is this a change to the CC&R's? Plus because they did not sign the document but still pay the dues, should allow them to use the amenities. The majority of votes voted in the re-instatement. Majority rules and the minority has to do what the Majority agreed to. It's like voting for President of the United States and your candidate loses. You still a member of the USA just with not a leader of your choosing.
Former HOA President
KerryL1 (California)
Posts: 14,550
Posted:
Do your original covenants say anything about what Owners need to do if they expire? This might be very near the end of the document.

ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By DanielS15 on 03/01/2023 12:15 PM
We recently began a process of the re-instatement of our expired covenants (with the help of an attorney). The covenants we are re-instating are exactly as originally written.
Some folks are not wanting to sign up for the re-instatement but they still feel that they are entitled to all the privileges and amenities of those that have signed up. Their reasoning is that since they still have to pay the annual assessments (affirmative covenants) that they should still be able to access the amenities.
Our attorney stated that those not signing should not have access to any of the amenities.
We currently have nearly 85% back on board and feel pretty good about that.
Any thoughts on what we can do with the 15%?
I presume you are asking what the HOA may legally do with the 15%.

I suspect you do not understand the legal complexity of revitalizing covenants. I do not think anyone at this forum is qualified to get into the weeds on this one and give you any advice on which you can rely.

Get a second opinion from another attorney. The first attorney will hate this. But it sounds like the board needs to be educated on this subject, and so it needs an attorney willing to break down what the law says for your HOA.
ElleN (Idaho)
Posts: 4,420
Posted:
Some here seem to be referring to a "restatement of the covenants." From what the OP posted, that's not what is going on. At present the original covenants are expired. "Revitalization" is what is needed. "Re-instatement" (not to be confused with "restatement") may be synonymous with "revitalization."

Discussion of Georgia statute 44-5-60
https://www.luederlaw.com/are-your-covenants-at-risk-of-expiring/

The OP has posted in the past about this in threads like this: https://www.luederlaw.com/are-your-covenants-at-risk-of-expiring/

Sounds like the OP's HOA has an attorney who says restrictive covenants pertaining to land use have expired, and but all other covenants have not expired. Hence it seems that all in the original HOA are stuck paying the assessment.

I suspect a close reading of the covenants will be necessary.

Daniel, what amenities does this HOA offer?
DouglasK1 (Florida)
Posts: 2,046
Posted:
If the covenants have expired, can the association even collect assessments? If owners are allowed to opt out of reinstatement, why would they pay assessments?
Escaped former treasurer and director of a self managed association.
KerryL1 (California)
Posts: 14,550
Posted:
Please excuse my usual typos, I did see the word as reinstatement.
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By DouglasK1 on 03/01/2023 6:15 PM
If the covenants have expired, can the association even collect assessments? If owners are allowed to opt out of reinstatement, why would they pay assessments?
Not all the covenants have expired. Only the covenants that are restrictions on land use expired. From the link above (a Georgia law firm's opinion):

"In 2002, the Georgia Court of Appeals concluded that affirmative covenants are not subject to Code Section 44-5-60 and thus do not expire. Specifically at issue in that case was a pre-July 1, 1993 covenant requiring the payment of mandatory assessments. A property owner argued that he did not need to pay assessments because the pre-July 1, 1993 covenant requiring assessments had expired. The Georgia Court of Appeals concluded, however, that a covenant to pay assessments is an affirmative covenant, rather than a restrictive covenant, and since Code Section 44-5-60 only applies to restrictive covenants, the affirmative covenant requiring the payment of assessments does not expire. The issue of which other types of covenants are restrictive versus affirmative was not addressed in the case and is an open issue for the courts."
TimB4 (Tennessee)
Posts: 21,062
Posted:
This article may shed a little more light on the topic:

Are your covenants at risk of expiring? from a law firm.

I suspect that Daniels' initial covenants were recorded prior to 1993.
TimB4 (Tennessee)
Posts: 21,062
Posted:
Oops, I see Ellen had already posted that link.

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