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Covenant Amendments

Started by DanielS15 • 15 replies • 420 views

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DanielS15 (Georgia)
Posts: 48
Posted:
I'll try to keep this short.
We have a very small community in Georgia and we are in the process of having our covenants re-instated. We need our covenants re-instated for two major reasons. The number one reason was that these were written in 1988 and expired in 2008. The number two reason was that these are in need of updating (amending) since they are 35 years old.
To accomplish this we have a new Board and a new attorney. Since this has been a very contentious issue, we (the new Board) opted to re-file the covenants as originally written in hopes that we could have the majority of the community agree for the re-instatement.
The good news is that over 80% of current residents have signed their consent forms.
The bad news is that our attorney now tells us that the original covenants do not include a provision for amendments so we can't amend them.
How can we have a set of covenants, that are 35 yrs old, that cannot be amended? Do we have any options to introduce much needed changes to the covenants without scrapping the whole thing and starting over (a financial impossibility)?
Any input, feedback, guidance, advice, is greatly appreciated.
CathyA3 (Ohio)
Posts: 6,299
Posted:
Yikes.

OK, what do your relevant state laws have to say? If they require that CC&Rs be "amend-able", then they'll likely override your re-instated provisions.

Also talk to your lawyer. You're likely no worse off than any other community whose old CC&Rs are not quite ready to be re-instated but they also do not allow for amendments. I'm pretty sure there have to be legal options for those who've accidentally locked the door and thrown away the key.

ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By DanielS15 on 05/20/2023 3:47 AM

The bad news is that our attorney now tells us that the original covenants do not include a provision for amendments so we can't amend them.
How can we have a set of covenants, that are 35 yrs old, that cannot be amended?
Did this HOA ever vote to subject itself to the Georgia Property Owners' Association Act?

I would expect that amendment (or adoption of new covenants) can occur via a 100% approval of owners.
DanielS15 (Georgia)
Posts: 48
Posted:
Would the Georgia Property Owner's Association Act be beneficial to us given the situation we're in?
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By DanielS15 on 05/20/2023 7:37 AM
Would the Georgia Property Owner's Association Act be beneficial to us given the situation we're in?
Is that a "yes" or a "no" to my question?

JohnC46 (South Carolina)
Posts: 14,265
Posted:
Daniel

Could you not approve the re-instatement then hold a separate vote to add the ability to amend them?
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Daniel

Could you not approve the re-instatement then hold a separate vote to add the ability to amend them?
DanielS15 (Georgia)
Posts: 48
Posted:
Sorry. No we aren't involved with the GPOAA.
DanielS15 (Georgia)
Posts: 48
Posted:
Our attorney has stated that since there are no provisions within our original covenants for amendments we are not allowed to add any amendments.
As an "old tech writer" its hard to understand a document that can't be updated/revised.
KerryL1 (California)
Posts: 14,550
Posted:
I guess we can assume your HOA attorney knows GA law. In CA, "Civil Code § 4260. Amendment of Declaration Authorized. Except to the extent that a declaration provides by its express terms that it is not amendable, in whole or in part, a declaration that fails to include provisions permitting its amendment at all times during its existence may be amended at any time." So you might want to make sure GA doesn't have something similar.

If your HOA is permitted to amend the then if like CA, you'd hav to get the reinstated first, which looks promising.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Daniel

I would suggest you have another lawyer look at it. Granted the right might might not be in there, but I am suggesting an addition might could be made.
TimB4 (Tennessee)
Posts: 21,062
Posted:
I'm surprised the covenants didn't auto renew (most have that language in it even from the 1980s).

Additionally, if they expired in 2008 and it's now 2023, I'm of the expectation that you would need 100% to agree to reinstate OR you could only reinstate the covenants to those lots who agreed to it.

Can you clear that up for me?
DanielS15 (Georgia)
Posts: 48
Posted:
We are looking into another attorney but cost is a big factor here. This stuff isn't cheap!
DanielS15 (Georgia)
Posts: 48
Posted:
Our covenants did not have a provision for auto-renew.
Unfortunately you are correct in that we won't have 100% of owners covered by the covenants. The good news here is that we, as of today, have over 3/4 of the owners on board (we're still working on the rest).
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Quote:
Posted By DanielS15 on 05/21/2023 5:18 AM
Our covenants did not have a provision for auto-renew.
Unfortunately you are correct in that we won't have 100% of owners covered by the covenants. The good news here is that we, as of today, have over 3/4 of the owners on board (we're still working on the rest).

How many owners do you need? I would think that over 2/3rds is sufficient.
TimB4 (Tennessee)
Posts: 21,062
Posted:
Quote:
Posted By DanielS15 on 05/21/2023 5:18 AM
Our covenants did not have a provision for auto-renew.
Unfortunately you are correct in that we won't have 100% of owners covered by the covenants. The good news here is that we, as of today, have over 3/4 of the owners on board (we're still working on the rest).

Be fully aware that you might not get everyone.

I for one would be very hesitant about signing into an HOA again if my covenants expired.
What a great future selling point.

Expecting that there is at least one lot not willing to sign, you very well might have holes in what lots are within the Associations governance.

That said, I don't recall, is there common property or common elements (roads, sidewalks, playgrounds, street lights, etc.)?

If there are, you should get some agreement for common area maintenance but without lot restrictions for those lots who don't want to sign into the full set.

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