CC&R's not re-recorded in timely manner

Our association board had a legal advisor who did not re-record the HOA CC&R's in a timely manner. A resident added garage doors to their townhome, was suited by the HOA as to violation of the CC&R's. Resident countersuited stating there were no CC&R's in effect, the homeowner won the suit when the Judge handling the case ruled that the HOA's CC&R's were null & void. The HOA board then went to homeowners and said sign that they wanted to abide by CC&R's and got about 77% homeowners to sign that they wanted the old CC&R's reinstated,approx 64 of the 83 signed and then had them recorded. In a later lawsuit by the HOA who sued several homeowners who were not paying their dues because they felt the HOA Mtc fee should be lowered,as the board had responsiblity for the comman area only. The judge in the later law suit said we were bound to pay the assessment set by the board according to the by-laws of the HOA, but that the invalid CC&R's could never be re-instated. Some on our board feel that those that want to can follow the old CC&R's and the rest of the homeowners don't have to. How can you administer your use of the mtc fees fairly if we all pay the same amount, but some get their houses painted some get their yards watered, etc because they chose to abide by CC&R's that were ruled dead, null and void. It just doesn't make sense.

The homeowners association had CC&R's for 25 years and then it stated they had to be reauthorized in June, 1999. The legal counsil was to do that, but did it 6 months later. No one evidently paid any attention to that date until the homeowner, as I explained in the earlier post, researched the law and found that because of the date difference we no longer had valid CC&R's according to the Judges ruling. The HOA board chose not recognize the Judge's decision and after time a group of homeowner's stopped paying their dues until the board accnowledged they were only now able to oversee the common areas and could not inforce null & void CC&R's(according to the Judges ruling). Go back to the first post the then president of the HOA said will we will just get as many homeowners as we can to sign a statement that said they wished to abide by the old CC&R's and had they recorded. In the final law suit as I stated in the first post, in an aribtration hearing with another Judge, who stated the by-laws do state the HOA Board can assess mtc fees, but he reiterated the first Judges ruling that the association did not have CC&R's because of the date issue. We are in the process of writing new CC&R's, but their are still some that believe because the signed that they wanted to abide under the "null & void" that they are valid for those that signed & had them recorded. I just want to know how you can mislead homeowners that they are bound by CC&R's that have been ruled not longer valid.

All of the owners would like to have CC&R's in force and have tried to get a head-strong president,who is no longer the pres., to recognize the judge made a ruling that said we did not have any "inforceable" CC&R's no matter if 60 homeowners signed they wanted to abide by them and they were recorded. How do you stop a board from spending thousands of dollars of HOA funds in hiring attorneys to say you can disregard the judges and ruling. I believe the last post is helpful in stating you cannot bind anyone to CC&R's that a judge ruled were not valid; even those who signed they wanted them. Is that correct?

Waldo,

Can you post the exact wording of the "term" of your original CCRs? I'm interested to know exactly what was required to extend the term. Thx!

I can't imagine why something hasn't been done in ten years to resolve this issue. When the judge ruled the CCRs were invalid the board should have had their attorney determine exactly what needed to be done to have a valid set of CCRs recorded. I can't believe that just because they were recorded 6 mos late they were ruled invalid. I'm wondering if there isn't something more to this story.

Can you tell me if you're in the Phx metro area and also who your HOA attorney is?

Waldo, it is hard to follow what you are explaining took place. As I understand it, the original CC&Rs had a sunset provision that caused the community to cease to exist after a certain period of time unless it was reauthorized. The reauthorization did not take place in time and hence the original CC&Rs are invalid. After that, the HOA Board tried to get various owners to recreate the community by getting various signatures of "members". Subsequently, there was a dispute about assessments and the judge ruled the by-laws need to be followed but the CC&Rs are still invalid. Is that correct?

What property does the HOA own itself rather than an undivided interest by all the owners as tenants in common? It seems to me that the only thing the HOA can do now is assess expenses for the property it actually owns? If it doesn't own the exterior of the houses, for example, it can't paint them or assess for painting them -- even if the original CC&R required the HOA to do that maintenance.

With regards to stopping a board from spending thousands of dollars of HOA funds in hiring attorneys, you could require the approval of a certain percentage of HOA members in the CC&Rs before the HOA's attorney could be used offensively except for certain exceptions such as real or alleged delinquencies. This language needs to be artfully drafted by a competent attorney and needs to consider possible attorney-client privilege issues when members vote on approval of proceeding with a lawsuit and exactly how hard you want to make that approval. These days developers regularly insert such a general provision into most condominium declarations in order to legally prevent the likelihood that the Association attorney could be used to sue them for construction defects with the percentage set at 67% approval. Most association attorneys view it as a poison pill and recommend amending it out ASAP, but in some Associations, it may make sense at a much lower approval level or flipped to require no disapproval by greater than a certain percentage of owners. The latter effectively prevents owner apathy from preventing use of the Association's attorney for legitimate purposes while still letting owners decide whether to proceed with a potentially expensive lawsuit.