Details of Ownership and Grandfathering of Voluntary Membership...

Reading through my HOA's paperwork, I had noticed an amendment change to the covenants and a rule and regulation that makes membership mandatory for those who had purchased a lot after the the change in rules on January 3rd, 2002.

Reviewing my personal paperwork, the home was originally in my father's name until his death on October 3rd, 2001. After filing a quitclaim deed, my mother became personal representative of my father's estate and over the property. My mother had then put my name on the property along with hers, and that was recorded on July 16th, 2002.

My mother had later passed away on September 1st, 2005, leaving only my name on the property.

Because my mother's name was on the property prior to January 3rd, 2002, she would be grandfathered, with membership being voluntary. Would that protection also extend to me, because her name continued to be on the property with mine after 2002?

Kevin,

Since you did not become an owner of the property until July 16, 2002 you are considered a mandatory member and subject to the gov. docs of the HOA. That means paying assessments and abiding by the CCRs. Sorry, but it appears you were 6 months late!

Kevin - methinks that applies to the property, not the people.

There is something I fail to understand here. Based on past posts of yours, you are in litigation with the HOA concerning your membership status. Further, this has been going on for more then a year. So why do you ask us???

We might be able to give you our take, but nobody can promise how a judge will see it. Personally, if you didn't buy then you shouldn't be subject. But I personally question the ability a restriction to the next owner of my property that doesn't apply to me (unless I allow such).

Now given the way such laws work in this area is could be that they wrote the change in that way to reduce the number of people who would file to prevent the change in Covenants applying to their home. (In the case of no mandatory HOA an owner can file within one year a declaration that will stop the new restrictions from applying to their property.)

The only way this matters is if you are thinking of dropping your membership. But from the sounds of it, you are enjoying benefits of membership and I would encourage you to drop the concern.

So much of the whole thing would depend on the wording and how ownership transfer took place. If they state selling the house and the house was not sold then I would say that membership is not mandatory. If they stated it would take place upon transfer of ownership then it would probably apply to you.

The covenants and restrictions are as follows:

"Notwithstanding anything else contained in this Declaration to the contrary, every record owner taking fee simple title to a lot subsequent to the date of the recording of this provision in the Public Records shall automatically be deemed a member of the Association assuming all rights, obligations an befits of said membership. Any record owner who has taken fee simple prior to said recording date shall not automatically be deemed a member of the Club Association unless or until said owner has agreed to join the Association pursuant to the terms of the Association's Bylaws as then in effect. Each owner taking record title to a lot after the effective date of this Amendment, whether or not it shall be so expressed in their deed or other conveyance, shall be deemed to covenant and agree to pay to the Association an assessment in the amount of Fifty-five Dollars ($55.00) per month for the operation of said Association which is responsible for the maintenance, management, operation, and insurance of the common areas and represents all residents of XXXXXXXXXXXXXX in matters of common interests. Said assessment can be increased or decreased from time to time pursuant to the terms of the Association's Bylaws. These assessments, together with such interest therein and costs of collection thereof as are provided in the Bylaws, shall be the personal obligation of the person or persons who is/are the owner of the lot at the time the assessment falls due. In the case of joint ownership, all joint owners shall jointly and severely be liable for the payment of such assessment. The Association shall have the right to recover its attorney's fees and costs incurred as a result of the lot owner's failure to pay said assessment, whether or not suit is actually filed."

The by-laws are where "membership" is stated as being mandatory:

2.1 Qualification for Membership. Any record owner of legal title to a lot which is subject to the Declaration as defined in Section 1.3 above is eligible to be a member of the Association. In the case of a lot subject to an agreement for deed, the purchaser in possession shall be deemed the owner of the lot for the purpose of determining eligibility in Association membership.

2.2 Membership. "Any lot owner within XXXXXXXXXXXXXXXXXXXXX, who is eligible to be a member of the Association puruant to Section 2.1 above, shall become a member of the Association in a form prescribed, from time to time, by the Association. Upon proper submission of said application, the lot owner shall be deemed a member and shall be entitled to all rights an privileges of Association membership. (hereinafter referred to as "Voluntary Member.")

Notwithstanding the above, any lot owner who takes title to a lot subsequent to the recording of that certain Amendment To Declaration of Covenants and Restrictions for XXXXXXXXXXXXXXXXXXXXX as recorded at Official Records Book , Page 8319, Public Records of Orange County, Florida shall automatically become member of the Association upon recording of the deed to the lot (hereinafter referred to as "Automatic Member").

Kevin in earlier posts (where you conveniently left out the info of this post) you spoke of having an attorney who advised you and your brother to pay the assessments "under protest" while you fight whether or not you actually are a member. I would assume the attorney is on this, what exactly do you want from us? A lay opinion; you are a member, pay the assessments and follow the CC&R's.

Notwithstanding the above, any lot owner who takes title to a lot subsequent to the recording of that certain Amendment To Declaration of Covenants and Restrictions for XXXXXXXXXXXXXXXXXXXXX as recorded at Official Records Book , Page 8319, Public Records of Orange County, Florida shall automatically become member of the Association upon recording of the deed to the lot (hereinafter referred to as "Automatic Member").

You weren’t on the title at all before July 16th, 2002 and you became the title holder September 1st, 2005 after the cut off date of January 3rd, 2002. You are a member like it or not.

Definition of Notwithstanding: in spite of, even if, without regard to or impediment by other things as stated.

Definition of subsequent: Etymology: Middle English, from Anglo-French, from Latin subsequent-, subsequens, present participle of subsequi to follow close, from sub- near + sequi to follow

Wile they probably can still opt out it doesn't look like you can to me.

Kevin,

Perhaps some of these "older" members are voluntary members and they can choose to opt out. However, before doing so, they should be clear on what happens if they later decide to rejoin -- would they still be considered a voluntary member or would they now be a mandatory member, in which case there is no opting out for ANY reason.

There may be a serious question about the validity of the amendment requiring mandatory membership. Such an amendment represents a major change in the "bargain" defined in the CC&Rs. Courts in some states have ruled that such major changes require unanimous approval of the owners/members. I suggest that you check case law in your state for any similar rulings.

Courts have ruled that CC&Rs are a valuable property right and therefore need to be protected against improper amendments.

There is also a question about defining the requirement in the bylaws. Unless the bylaws are recorded and run with the land, any such requirement is likely invalid and unenforceable since the membership requirement runs with the land, not the owner.

Although I have heard arguments against homeowners associations converting from voluntary to mandatory, I have also read that many courts uphold associations with actual facilities to maintain.

The neighborhood of my other home, a neighbor is suing the association for "mandating" his property. In that particular situation, there is no common property. In my neighborhood, there is the matter of the clubhouse as well as community sprinklers.

One of the issues I had read about that may effect my neighborhood is that from what I understand, the covenants were drafted and implemented before the creation of the clubhouse. Flipping through my covenants right now, there is zero mention of the clubhouse, or any such facility, but there is an amendment addressing sprinklers.

Kevin,

Unless you are prepared to take on another court battle, you should consider yourself a mandatory member of the association. As Mary pointed out, you took ownership after the change.

Unfortunately, the cost of ownership does go up over time. Partly because every other cost tends to go up. But also, many times because organizations don't factor in wear and tear and thus don't properly plan.

I can guarantee that some here would talk of "borrowing" from reserves to pay for a pool pump. But that is just what reserves should pay for. And some get excited because the reserve drops tremendously when they pay for roofs to be redone. But this is normal because you spent years building up for the expense.

In general people are very poor at dealing with highs and lows in finances.

Don,

I agree! I've always felt a 100% vote should be required to change the requirement. I have heard of some courts that have ruled that way. I don't know that this is addressed in state law in many states, thus making it a requirement to go to court to settle the issue.

Don,

Wow! I'm surprised; of all the states in the union, LA would have such a law.

A gal from VA posted on here awhile back that a court there stated a 100% vote would be required, so I know the issue has been ruled on. Here in AZ, I know of several voluntary HOAs that an HOA attorney has tried to convert to mandatory w/o a 100% vote of the members. I don't know if any of these cases have gone to court yet, but I do know there has been much controversy surrounding this attorney's actions.

Don,

From what I understand, regarding the cases in AZ, the voluntary members did not come to the attorney -- he went to them with the proposal. Perhaps he was just looking for more legal work!

BTW, I just love your bottom line.

P.S.
I didn't mean to imply there are no "inteligent and conscientious" people in LA; but having lived there I know what the govt is like and I know the law is based upon archiac French law.

I know about my neighborhood, there was a sense of community before, back when the community established, and the area wasn't developed, but over time, many factors contributed to the change in feeling.

Some of the older residents passed away, newer residents moved in that were not assimilated into the group, and with the elimination of age restrictions, younger people moved in who did not want to affiliate themselves with the neighborhood, the area developed rather quickly (my neighborhood borders Sea World)...

Before, the only thing to do was to be involved in the neighborhood, but development and change in home ownership whittled away at participation, and the association converted to mandatory to cover the costs.