HOA Documents - Not Updated to Reflect Developer is No Longer Declarant

Our development was turned over to the HOA almost a couple of years ago. Our governing documents have not been undated to reflect that; the developer is still the "declarant." We have a situation where the greatest majority of us who bought homes were given a 6 month period in which to begin construction and completion of our homes. But, the developer also provided for a very small percentage of lots that would not be provided any deadline. As a result, we have several lots that have not been built on; they are eyesores and nuisances (a violation of our covenants). Does the HOA Board have the authority to rescind that privilege and institute a deadline without having to take the issue to the entire HOA for a vote?

Patricia,

Depend on your investigation into what Paul suggested you might need to take another at your covenant. You might find that the developer has simply turned over control of the association to the HOA (to maintain the common areas etc). For example my covenant defines that will happen after 75% of the lots were sold. The developer is still the declarant until he receives bond release as Paul indicated.

The 6 months is a mechanism to ensure that homes are built in a time manner. In MD our statutes require 3 months for construction.

You said the lots are "eyesores and nuisances". If you mean they are unkept with tall grass, constuction debris etc. then HOA Board can issue a violation notice to the developer - he owns the lots and is not in compliance with the covenant.

Good luck.

Not sure if your documents need to be changed.

Ours has this clause:

"(c) References to "Developer" shall include any entity, person or association to whom Developer may assign the foregoing right of approval. References to structure in this paragraph shall include any building (including a garage), fence, wall antennae (except for standard small television antennae) and microwave and other receivers and transmitters (including those currently called satellite dishes). "

Thanks for all the responses. To clarify - these lots were purchased by individuals. They are in violation of two or more of our covenants because the lots are unkempt and considered nuisances. The Documents do not give any deadline for building on these lots. Right now, it appears they can stay vacant in perpetuity the way the Developer wrote the section. I think the need to take the documents and delete reference to the Developer as the Declarant is probably the right way to approach this. And it is something we need to do regardless. I would think that once the documents are corrected, though, the entire HOA would have to vote to approve/disapprove. Just as an aside: we tried to update our Bylaws last year. Board members who were assigned the task created it with the assistance of an attorney and by using other HOA bylaws for guidance. The HOA was given ample opportunity to review the rewrite and make suggested changes. Once these were incorporated, if found to have merit, the Bylaws were presented for a vote of the HOA at its annual meeting. It didn't pass. This process is frustrating to say the least. Thanks again.

Patricxa,
I agree with Paul. Also it seems it would be a good idea to get a look at your town/county master plan and see who really has deed to these lots.

If it is the developer and he hasn't legally provided for an exemption for these l;ots in your documents, he is just another owner. When you rewrite your documents you also renew or rewrite part of your master deed and declaration that establishes your charter at the Courthouse. If it does not show these lots to be anything other that a lot like any lot, then change it, and get it voted on and passed. You can also cleve the Declarant out of you documents with a broad disclaimer, but that takes a good lawyer and maybe a lot of money, so take the lawyers advice on how to do it. I suspect the developer is legally just another homeowner at this point.

PatriciaB6: If the owners are paying their assn. fees, and based on the docs they do not have to build on their lots within a time period, IMO, what can you do?

Further, have you gone to the municipality to learn if THEY have any restrictions re a time period in which an owner must develop/build? It would be an arrangement the developer made with the local office, that lots would be sold, but the owner could leave it undeveloped and not built upon. This brings up another question. Do your docs state this remains common area UNTIL a unit is built upon the lot? You really need to speak with your local officials.

As a last resort, may be able to come at it from another angle. The Board has a responsibility to ensure property values are not diminished by the community's unkempt appearance. Advise these owners of this responsibility and if THEY do not ensure that their lots will be 'cleaned up' regularly, the Board will contract the landscaper to do the work and the owner will be billed. You would want an attorney's advise on going this route.

Dr. Gloria,
Would you agree that in the event the developers interest is unclear as in this case with the vacant lots and the pond issue that clarification is necessary. Our documents were twenty five years before they were re-written. Now maybe the first amemded change to the documents will last fifty years, who's to know, but if you do not erase any developer interest, real or imagined, the association, due to constant board and member turnover, is always faced with, "What does all these references mean about the developer (declarant), we better find out", so they hire a lawyer to find out.....again....and again. If the reference to the developer is taken out and cleaned up, then there is never a question in the future.

Also, at takeover time there are other amendments likely to be made and you might as well do the whole thing. We did ours that way and I never hear anything about the developer (declarant). Of course our condo is on an island that has a POA and amenities are run by the developer and he is not finished developing the island, but our condos are fully developed. Of course our developer would like to have his fingers in our condo as there are a lot of rental units here and they have a good number of units they rent. But our documents place all responsibility of rentals on the owner and we try our damnedest to stay out of the rental business, but you know how that goes.