Declaration changes

We are an HOA consisting of only 12 homes in West Virginia. Our Declaration has some items that home owners would like to change and are not addressed in the bylaws. The declaration was recorded in 2004 by the builder but the HOA has now been turned over and ran by the homeowners. The declaration has a Section: Duration and Amendments. Here is what is written. Can we make changes now? If we can not make changes for 20 years what other options to we have to make changes to various restrictions listed in the declaration?

The restrictions of this Declaration shall run with and bind the land, and shall inure the benefit of and be enforceable by the Association, or the Owners of any land subject to this Declaration, their respective legal representatives, heirs, successors, and assigns, for a term of twenty (20) years from the date of this Declaration is recorded, after which time said Covenants shall be automatically extended for successive periods of ten (10) years unless an instrument signed by the then owners of two-thirds (2/3) of the lots of the entire subdivision has been recorded, agreeing to change said covenants and restrictions in whole or in part. Provided, however, that no such agreement to change shall be effective unless made and recorded one (1) year in advance of the effective date of such change and unless written notice of the proposed agreement is sent to every Owner at least ninety (90) days in advance of any such action taken.

Gerald,

I think you could make the case that the declaration can be amended at any time as long as they comply with the notice and voting requirements. It could be read in two parts - runs for 20 years and then 10 year increments, and then "unless an instrument signed......". There is really nothing in the second half that qualifies or limits the amending to the period after the first 20 years. It's gray, but I think if 75% of the owners voted for change, a judge would not substitute their judgement in place of the owners, where two possible interpretations could be found.

In any event, you're going to want ot talk to a good association attorney before trying to amend, just to get a real opinion and to see if there is any case law in NJ dealing with similar issues.

JOe

Sorry, I meant case law in West Virginia, not NJ.

Joe

JosephW - I agree with you on changing the declaration at anytime. I thought that's what I posted.

Since when is an attorney's opinion real? LOL.

The terms should be stated in the bylaws. All the others are property issues.