Can the builder change or “amend” the governing documents easier than the association could?

Good day all. It has been some time since I’ve posted. Although, I continue to receive and frequently still review many of the new threads that are being posted and discussed.

To make a long story really short, my wife and I would like to reside in Pa in a couple of years. I have asked for and have received the governing documents for the community. I’ve read them through and there are several covenants NOT written or are silent (that won’t necessary affect me directly, but as far as enforcing the covenants, most definitely, they would.

Is it “easier” for the builder to change the covenants prior to turning the association over to the members?

Since, I have been on the board, here in Georgia; there have been several covenants I felt either needed to be amended or added, but getting the covenants amended as you all know is extremely difficult and very time consuming, to say the least.

I would most like to hear from as many of you as possible.
Thanks in advance.
Chuck W.

Charles,

Even if wording Donna has suggested is not contained in the CCRs (nothing to this effect in my CCRs) , the builder (declarant) still has the upper hand while he is in control. Generally speaking, the declarant IS the board. I say this because the declarant usually appoints members of his staff to board positions, thus maintaining control of the actions of the board (who in their right mind is going to vote against the boss?). Any action that would require a vote of the members (such as amending the CCRs) also gives the declarant the upper hand. Generally the declarant (Class B member) is alloted more than 1 vote per unsold lot giving him the majority of votes while still in control of the assn.

I'm trying to remember our handover, but it seems to me that prior to turning the association over to the homeowners, the developer DID make SOME changes to the by-laws, but not the Deed Conditions, Covenants, and Restrictions.

I think that early on, LONG before the subdivision was entirely built out, that the developer had made SOME changes to the CC&Rs. . .for one thing, I distinctly remember seeing a restriction that stated that vegetable gardens were NOT allowed.

That was about a year before my husband and I finally decided to buy here.

We had a couple meetings with the developer and even kept a copy of the governing documents while we searched around other subdivisions.

We did get another set after we bought the lot and it turns out that restriction disappeared into thin air.

I thought I was going crazy until I was talking to one of the "pioneer" residents and he got his set out. Sure enough, there it was. But everyone else ended up with a set that didn't include that restriction.

How and when did it change? I have no idea.

So, to bring this ramble around to some kind of point, it's possible that developers are able to amend governing documents prior to turn over.

I don’t have nearly as much time as I once had. Although, a few minutes here and there certainly helps. I do appreciate the advice thus far and I will compose what you all have suggested and send well formulated thoughts to the builder and see if the suggestions do anything.

I’ll also be posting a new thread, here shortly asking for your suggestions once more. I look forward to reading what you all have experienced with association living. I will then suggest changing “amending” the current covenants, to benefit the community and see what happens.

Thank you all once more.

Chuck W.

"Is it “easier” for the builder to change the covenants prior to turning the association over to the members?"

I assume by covenants you are referring to your CCRs.

I believe it depends on the laws of your state. Here, in CT, the statute states that once the builder has filed the CCRs (Declaration) they can only be amended by an affirmative vote of 67% of the homeowners, even while still under developer control. There are a few exceptions. The developer may unilaterally amend the CCRs to declare new units and to make corrections where the CCRs are not in conformance with state law. Developers sometimes believe that since they created and filed the CCRs that they can unilaterally amend them as long as they are still in control. However, that may not always be true.

Short answer - It may not be easier for the builder to change the covenants. He may not be able to change them at all. Check your state laws. Also check your CCRs to see what they have to say about amendment. That's the procedure that has to be followed, provided it's in compliance with state laws.

Sad, but true, Robert! Even states that do have HOA statutes (for both condos and p/c's) there may not be a state agency to oversee HOAs. When this is the case, a member's only recourse is to file a lawsuit and how many of us can really afford that?