Phase II timeline expired?

Our HOA was developed in 1996 and are in North Carolina. We have approximately 30 lots intotal Phase 1 was 15 and Phase 2 another 15. All of the CCR's state the nameof the neighbor hood and do no specify one Phase from the other. However, in the original Declaration, the Declarant added a section titled "Amendmnts by the Declarant" section f is as follows- "The Declarant reserves the right to add and subject Phase II of Cassimir Commons to this Declaration which section shall not be more that 15 additional lots and shall be added to this declararion within 5 years"
We have recieved a letter from one Home owners attorney stating that she wants to OPT-OUT of the HOA. The reason is that the lawyer says that thetime to include Phase II has expired.
Any thoughts? Before I spend our limited HOA funds to pay our Attorney, I thought I would get some of your wisdom and insight. I just don't know if the previous Boards have overlooked this and created a problem or if we have nothing to worry about.

Thanks
Kathy

Ihave also attached the link to the filed documents
http://srvrodweb.nhcgov.com/docdetail.asp?id=DAwMg%3D%3DE%21%03%13MYOhrIiN%21TUxNbYCXDQzN&ms=0&cabinet=opr&pg=&id2=C8yO%21M%21z%2F%03%0FOvG7SLnflTk2Q%21G%21eC8xO

Kathy, I think you may need to get an opinion from an attorney. What you quoted suggests to me an owner in Phase 2 may have the right to not approve being added if the Declarant did not amend the Declaration within 5 years of its filing.

Kathy, Based on what you now post about the roads and driveways being common area, even if you do have the right to not join it would be a bad idea since you would not have access to your home. If people posting would just "tell the rest of the story" with the first post it really would help them get suggestions

Thank you Kirk.

I have ben pulling the deeds and some do have the appropriate riders for a PUD and some do not. I will b spnding a few days reading through all of the documents and hope to find a reference to Phase II.
Thanks Again!

Exactly where does the poster mention a "condo association"? The OP clearly referred to lots, "homes", and made no mention of condominiums. It is in fact quite possible that the 15 homes have absolutely no obligation to be part of the HOA that is burdening the property of the other 30 homes. Who wants to be subjected to perpetual liens on their property?

Regardless of whether the roads are publicly or privately owned, the 15 lot owners undoubtedly have an easement over such property and neither the 30 lot owners or the HOA have an undisputed right to prevent the 15 lot owners from having access to their homes or to "charge a toll". Of course the member from the 15 lot homeowners had to hire an attorney at their own expense while the board member will seek to achieve her personal objectives by using HOA funds to hire an attorney.

As to whether the HOA has standing to file suit against the 15 homeowners, that will be a question of law. If the HOA owns no property in the area identified as being associated with phase II, then the HOA might well not have any standing to sue the 15 homeowners. By the way, the HOA would likely have to sue all 15 homeowners in order for them to be bound by this decision. Are you sure that you want to "assert your authority" by suing at least 15 homeowners? Conceivably, if you use the HOA then you might even have to name all property owners in the subdivision (yes, even HOA board members) as parties. Are you sure you want to unleash that on your subdivision?

Some of the issues involved in this case will be a) whether the North Carolina Planned Community Act applies (see also Armstrong vs. Ledges of Hidden Hills for a North Carolina Supreme Court case regarding this matter), b) whether there is any obligation imposed to maintain the road, c) whether there were any restrictions recorded against the 15 lots at all, and d) other factors. If their properties are not burdened by the HOA, the HOA would not be able to lien their property any more than any other owner could lien the property. The HOA would not be able to pursue board members objectives while forcing the 15 homeowners to pay for it (another issue in the Armstrong case). The Armstrongs prevailed at the North Carolina Supreme Court against an association board that was hell-bent on compelling them into involuntary association, threatening them with liens, and trying to "fine" them for not goose-stepping in the presence of the board. The HOA lost and was faced with having to refund all the monies ever collected from homeowners. The only winners were the HOA attorneys. The lawsuit created a significant permanent rift in the subdivision. see http://www.ledgesofhiddenhills.com

Kathy, the previous poster is a die-hard anti-HOA activist.

He has been posting under that and other "pseudonyms" on the board recently and HOATalk is appropriately banning him when we report him.

He thinks ALL HOA board members have nefarious and greedy and/or personal anti-American goals or behaviors and it's his goal to come into this site and disrupt our attempts to discuss, share and learn from each other.

Don't take his comments personally any more than you would take the comments of a crazy man on the corner yelling out that the end is near and we're all sinners personally.