Filing Amendment for Dues or Assessments

Our HOA is about 18 years old and has been a bit disorganzed with respect to paperwork. No current board members had a complete copy of the Charter, By-laws, or Covenants & Restrictions, so I went to the Register of Deeds today and contacted the original attorney who handled its formation. I was able to put my hands on file-stamped copies of the Charter, By-laws, C&R plus 2 amendements to same; however we are not currently handling the dues collection as it is described in these filed documents. I'm waiting to hear back from a few phone calls to see if there are any documents floating around that might give the HOA the right to collect the dues we have been collecting over the past few years (we are billing for twice what is reflected in the docs in addition to demanding it annually in advance rather than monthly in advance). My question is this -- how necessary is it for the docs to filed and registered with county in order to be in compliance, or does it not matter as long we have correctly voted on the amendment? HELP! Thank you!

Our dues/assessments increases do not need to be filed as an amendment.

So it may be possible that the assessments increased gradually over the years, well within the top amount allowed without an amendment, and you just don't have access to whatever minutes or records those were in.

Mary:

The association is 18 years old.

If they are allowed to increase the dues amount annually to a certain percent without getting approval, they could easily be almost twice as high as what's specified in the "docs," if they've increased multiple years.

Have no idea about the monthly vs. yearly thing, though. Seems like that would have required an amendment along the way somewhere.

Julie,

If the CCRs state a specific amount for the assessment then "yes" an amendment would be required to change that amount, i.e., the assessment shall be $200 per year. However, if the CCRs state the assessment can be raised by a certain %, or not to exceed a certain %, then an amendment is not required to increase. You may also want to check your HOA state laws, if any, to see if assessment increases are addressed. In AZ, state law places a cap of 20% for a yearly increase, unless the assn docs state a lower limit. This only applies to planned communities; there is no state law for condos.

Julie,

If the CCRs are amended, that amended should be recorded at the Co. Recorder's office just like the original CCRs were.

Legally speaking, I don't think the increased assessment is enforceable, but if none of the members has questioned it I certainly wouldn't draw attention to it. But, instead of seeking an amendment to raise the assessment to a specific amount, I would suggest an amendment to change the requirement to be a certain percentage, i.e., the assessments may not be increased more than ___% in any given year. This will eliminate the need to amend the CCRs each time the board feels the need to raise the assessments. In fact you may have less of a problem to get the required number of votes. Many people will be against an amendment to increase the assessments, but those same people may have no objection to the alternative.

Filing docs with the court is needed to be effective. If you think you don't have all amendments, etc you can check your title insurance policy which should show all recordings to the date of the policy. If the policy says "and amendments thereto" call the preparer and get the info.

Our docs allow for a 5% increase per year in assessments PLUS allowing an increase for our lawn service. Check your docs.