Restrictive Covenants

Started by JeffT1 • 1 replies • 1243 views

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JeffT1 (Kentucky)
Posts: 1

Posted:

Our HOA was just formed last year and the developer handed over 3 core documents. The Articles of Incorporation, the Bylaws, and the Restrictive Covenants. The Bylaws specifically state a required 3/4 quorum for any amendments, but the covenants doesn't have any provision for amending. However it does have a section labeled Term that states the following:

"All of the above restrictions, conditions, and covenants shall be effective until December 31, 2034, after which time said covenants shall be automatically extended for a successive periods of ten years unless an instrument signed by the majority of the then owners of the lots within the Property wherein such owners agree to change said covenants in whole or in part has been recorded in the count clerk's office"

I understand that without seeing all three documents you may not be able to answer my questions but generally speaking, is the Restrictive Covenant a document that can not be changed by the association, if not, can it be changed by the Board of Directors or does it require a majority vote in order to change one of the restrictions?

If you're willing to take the time to check it out, the documents can be located at http://www.gleneagleshoa.org

Everyone's input, suggestions, or comments are greatly appreciated.

Thanks,

Jeff Tanner

MaryA1 (Arizona)
Posts: 7,043

Posted:

Jeff,

I took a look at the covenants and I interpret the "term" article this way:

The authority to amend is contained in the term provision. It says the declaration will remain in effect until 12/31/34 unless the members, by a majority vote, agree to amend them. I read that to be the authority to amend. A majority vote of the members is required. Since it doesn't say "the members who are entitled to vote" (meaning those with no violations or assessment delinquencies) it means every member is entitled to vote. A special meeting would be called, in accordance with your bylaws, to vote on the amendment. If passed the amendment would have to be recorded at the CO recorders office just the same as the declaration was required to be recorded. Actually, if I was a board member I would suggest amending the declaration to add a separate amendment article which describes the procedure in full.

I looked through the whole doc for a separate amendment article, but as you say, is isn't one. It's kind of a strange way to state the right to amend. Most docs have a separate article entitled "amendments". I looked through the whole doc for a separate amendment article, but as you say, there isn't one.

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