Covenant Interpretation - Enforcing Deed Restrictions on Properties

Through my research for my HOA, I had come across the covenants of a neighboring association, and an amendment to the original covenants had made me wonder. The following excerpt is from the amended covenants:

Each owner of any lot as set forth on the plat of XXXHOA, whether or not it shall be so expressed in their deed or other conveyance, shall be deemed to covenant and agree to pay XXXHOA an annual assessment in the amount of seventy-five dollars, regardless of whether said owner(s) is/are members of the Association.

If I interpret this correctly, this amendment says that regardless of if your property states in its deed that it is or is not restricted by covenants, this new amendment makes your property subject to the covenants, and regardless of membership, you must pay an annual assessment.

According to the document, this amendment was adopted by at least fifty percent of the lots "executing a written instrument making said changes". My question is, if my interpretation is correct, can a majority of homeowners force other properties not subject to covenants and restrictions to be subject to covenants and restrictions?

Kevin, Since this is an amendment to the original Covenants I think the amendment was meant to apply to the annual assessment, not the CC&Rs. Although it could have been worded to not be ambiguous.

I had read the original covenants for the neighborhood, and there is no mention of an annual assessment.

There is actually more to the amendment but it was very lengthy, so I had only typed the part of interest to me. The rest of the covenant goes on to explain how much the assessment can be raised per year, that the assessment is a personal obligation, and that the association has the right to recover the assessment and all other fees and costs associated with it. Another amendment amended at the same time also grants the HOA the power to enforce covenants, when previously that power was reserved for the owners (I assume this provision was added so the HOA could collect assessments).

Maybe it is a case of poor wording, and assuming that every homeowner's deed does state that they are subject to restrictions, then why make that statement.

I had looked up some of the deeds to see if some were and some were not subject to covenants and restrictions. Of the couple I printed out, each deed stated pretty much the same thing, that they are subject to covenants, restrictions, and easements. A couple were worded differently, stating "Subject to easements and restrictions of record, if any; however, this reference to easements and restrictions shall not operate to reimpose the same".

I was a little confused as to what the second half of that statement meant. Does that mean that the homeowner purchased a home restricted by covenants, but after its purchase, it was free from those covenants?

Kevin,

Now I recall past messages from you! I'm thinking your friend's assn is also voluntary, otherwise it wouldn't state that assessments were mandatory whether you were a member of the assn or not.

It should be noted that if there are deed restrictions attached to a property it should be so stated in the deed and also on the title ins report. However, what those restrictions are would not be stated. You would have to read the CCRs to find out that info. And, most importantly, just because a property does have deed restrictions does NOT mean there will be an HOA, whether voluntary or mandatory. Usually the determining factor is whether or not there are common areas and amenities that require maint.

I don't believe anyone can be obligated to pay assessments to an HOA of which they are not a member. That is one thing I would definitely spend money on to fight!!

I had also noticed after reading that some deeds mentioned the properties are subject to "covenants and restrictions" while others make no mention of "covenants" and are only subject to "restrictions, easements, etc."...

This leads to my question, considering that I've seen governing documents state "Covenants and Restrictions", and the wording found in these homeowner's deeds, are the terms "covenants" and "restrictions" different, the same, or partially interchangeable (much like a rectangle is always a square but a square is not always a rectangle)?

If that is the case, are those properties only subject to covenants that are restrictive in nature (Do not do this, do not do that...), and are not subject to covenants that demand payment or is the wording inconsequential, and a covenant is a covenant, restrictive or not?

Kevin to answer your question, one would need to look to state law. In Texas it would take 2/3 of the owners to sign within a one year period to enact such a change. And then the remaining people would have one year to file a statement opting out of said change. Those who file to opt out are not subject to the covenant. (And I believe the next owners would not be either.) Those who don't file are subject. As a note, those who ratify to document can not then choose to opt out.

Kevin,
Has this been asked?

What is on file at the courthouse at the time these HOA's were chartered? Are they different, the same, is there any amendments to any of the original documents. Are any of these changes by vote of the associations on file and what do they say?

There are about 12 separate recorded covenants and restrictions that were recorded between 1973 and 1987. The two other HOAs have been around since 1973 and 1979. My section was built in 1983 and never established a HOA. In the 80s, the one association that wants to assess non-members amended their articles of incorporation saying that they are in charge of the other sections, but I am not certain how that would apply since my CCRs have specific instructions on how to form an HOA, so I don't believe an outside HOA can exert force.

As for amenities, the answer is no. There is zero common property. All retention ponds and grassy areas are owned by the county. They had installed water meters and electric meters on the county cul-de-sacs so they could plant grass and put in lights, but they do not own the property (which makes me wonder how they could do so anyway) The HOA had used the county to tax all the homeowners to build a brick wall, but the wall is located on the individual property owners' plat. They had mentioned that they were building things so they could then maintain them, hence needing the maintenance assessment. And as far as I know, there are a few other non-members not paying. I'm assuming that by the third collections notice, they were probably intimidated to pay because it was the letter stated it would go to their lawyer and the homeowner would be responsible for all legal costs. That was in March. I haven't heard back yet.

I had posted about this before, but new things seem to develop. The newest is their actual attempt to collect and holding their meeting in the gated community across the street. I had contacted the property manager for that organization and they stated only members can use their facility, so apparently the HOA had gotten a member to rent the facility. My plan was to go with a tape recorder and video recorder and ask to enter, since it is allowed by Florida Law and a copy of statutes that state Parcel Owners are allowed entry.

I do think writing a letter is a good idea because the only argument that I can see them making as to not allow us into the meeting is that we are not in their HOA, but that would throw out the requirement to pay an assessment argument.

The other thing is they state only members in good standing can attend. The articles of incorporation state that each property owner can vote, but the by-laws restrict voting to members in good standing... can the by-laws restrict voting if the articles make no mention?

Kevin,

IMO, the FL statutes only apply to HOAs. So if you are not a member of an HOA they do not pertain to you. Members who are not in good standing should be allowed to attend meetings; usually the only restriction is that they cannot vote or use the amenities and this should be outlined in the bylaws. Remember you are not a member so don't try to push the point that you want to attend a meeting. Write that letter and hopefully get them to state in writing that you cannot attend because you are not a member. That will be excellent documentatin to support your case should they decide to take you to court.

Kevin,

Frankly, I think you should just resign yourself to the fact that the board isn't going to explain anything to the membership. I also think you'd be much better off if you just bowed out and sat back. You may find that the threat of taking you to court to pay the assessments will just fade away.

Robert,

Here's where I'm coming from. Kevin is not a member of the HOA, he has chosen not to join. However, the BOD has sent him violation notices for nonpayment of assessments. I believe the HOA has no legal reason to expect nonmembers to pay assn assessments. Kevin has stated there are no amenities in the community; therefore the BOD cannot accuse him of using the amenities, thus justify payment of assessments. The BOD has threatened to take him to court but so far it's only a threat. Kevin has had almost constant contact with the board which, IMO, only keeps his supposed delinquency in the forefront. By just keeping quiet the board may just forget about him, especially if they realize they cannot legally require a nonmember to pay assessments. Frankly, I don't know that there is anything Kevin can do, anyhow, so what harm can it be to just lay low for now?

Robert,

I seem to recall Kevin saying there were others who didn't sign up but after being threatened with legal action they paid up. I'm of the impression he's the lone holdout, but, of course I may be wrong.

Kevin, not to mention the fact that just because their lawyer says you have to pay if you lose, doesn't make it so.

Our governing docs say the losing party does, but the judge makes his own decision.

In the 3 cases we've had go to court, the judges only made 2 of them pay. The other we each had to pay our own attorney's fees and the losing party paid court costs.

Which, in the scheme of things, aren't usually that much.

Kevin,

As Michele says, the judge will make the determination as to who pays what, regardless of what is in your gov docs. The judge will also make the determination as to what is "reasonable". Frankly, I cannot imagine a judge ruling that you MUST pay assessments to an HOA of which you are NOT a member, no matter what the amended docs say. That to me that is just plain ludricrous. I also agree with Michele in that just because a lawyer says it OK doesn't mean it is! Many a lawyer has been proven to be wrong. This guy got away with pulling this scam (IMO, that's what it is!) on another assn and now he's trying to do it with yours. This is what happens when the board is filled with unsuspecting, unquestioning members with no common sense. Of course this is just my opinion!