Renewal Of Covenants

Started by KevinK7 • 15 replies • 6596 views

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KevinK7 (Florida)
Posts: 1,343

Posted:

I was curious as to how exactly renewing covenants worked. Here is an excerpt from a set of covenants:

These Covenants and Restrictions are to run
with the Subdivision and all of the Lots and the
Property located therein and shall be binding on
all parties, grantees, and all persons claiming
under them for a period of thirty (30) years from
the date of recording thereof, after which time
they shall be extended automatically for
successive periods of ten (10) years, unless an
instrument signed by a majority of the then
Grantees has been recorded agreeing to the
modification, amendment or revocation of these
Covenants and Restrictions.'

If the covenants state that they are binding for a period of 30 years, then does this mean that the covenants can be amended or renewed any earlier then the 30 years, or must the 30 year period be reached, and then renewed or face automatic renewal?

RichardP13 (California)
Posts: 1,767

Posted:

I read them to say they stay in place for 30 years at which time they could automatically renewed in 10 year periods, or can be amended, modified or even throw out with a vote of the majority of the members and properly recorded.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Kevin,

It's hard to say since I don't have access to the whole provision of your CCRs regarding the term and admendments. My CCRs read: "As amended and supplemented from time to time, this declaratin shall continue in full force for a period of 20 yrs." However, IMO, what you have written could be construed to mean that they CAN be amended during the 30-yr period, i.e. "unless an instrument signed by a majority of the then Grantees has been recorded agreeing to the modification, amendment or revocation of these Covenants and Restrictions." I would suggest contacting an HOA attorney for a legal opinion.

JohnB26 (South Carolina)
Posts: 1,569

Posted:

Quote:

Posted By MaryA1 on 03/11/2010 4:02 AM
Kevin,

It's hard to say since I don't have access to the whole provision of your CCRs regarding the term and admendments. My CCRs read: "As amended and supplemented from time to time, this declaratin shall continue in full force for a period of 20 yrs." However, IMO, what you have written could be construed to mean that they CAN be amended during the 30-yr period, i.e. "unless an instrument signed by a majority of the then Grantees has been recorded agreeing to the modification, amendment or revocation of these Covenants and Restrictions." I would suggest contacting an HOA attorney for a legal opinion.

MaryA1,
Slightly off topic, but, how can a potential buyer into a HOA perform 'due diligence' when even the 'experts' can't understand the CCRs?
Food for thought.

MaryA1 (Arizona)
Posts: 7,043

Posted:

John,

I guess they just do the best they can!

BTW, who are the "experts" who can't understand the CCRs? All the people whom I've ever met who set themselves up as "experts" portray the image that they know everything, otherwise they wouldn't be an expert! LOL

TimB4 (Tennessee)
Posts: 21,047

Posted:

Mary,

You have that slightly wrong. An "expert" is one is willing to admit when they don't know something, takes the time to research and comes back with the answer or a list of possible interpretations.

Those that claim to be an "expert" because they know everything on the topic is only lying to them-self and anyone who takes there word at face value.

The old saying of Trust BUT VERIFY is best for anyone volunteering their time for the Association.

Tim

MaryA1 (Arizona)
Posts: 7,043

Posted:

Tim,

I agree with you. I was only talking about the thinking of people who "claim" to be experts.

MichaelK11 (Texas)
Posts: 432

Posted:

If there is a (separate) provision for amendment that does not restrict according to time, then they can be amended at any time, according to that provision. I expect that there is.

If there is another provision for renewal, then they can be renewed according to that. I suspect there is not.

Perhaps your covenants allow for amendment or dissolution (revocation) based on a supermajority; but at the thirty year anniversary and every ten years thereafter allow for action by a simple majority; and if no action is taken on those anniversaries they renew automatically.

JohnB26 (South Carolina)
Posts: 1,569

Posted:

Quote:

Posted By MichaelK11 on 03/11/2010 5:07 AM
If there is a (separate) provision for amendment that does not restrict according to time, then they can be amended at any time, according to that provision. I expect that there is.

If there is another provision for renewal, then they can be renewed according to that. I suspect there is not.

Perhaps your covenants allow for amendment or dissolution (revocation) based on a supermajority; but at the thirty year anniversary and every ten years thereafter allow for action by a simple majority; and if no action is taken on those anniversaries they renew automatically.

EXCELLENT EXPLANATION

KevinK7 (Florida)
Posts: 1,343

Posted:

There are only two sections of my covenants that regard the extension of covenants. The first is what I had posted above, with the added paragraph below:

The rights of the
Developer herein granted to enforce these
Covenants and Restrictions shall continue for a
like period of time. Any lot Owner or his
designated agent, the Architectural Control
Committee and the Homeowners Association, or
their respective successors and assigns, and
each of them shall have the primary right to
enforce the provisions hereof, and in addition to
the other remedies provided herein, by suit at law
or equity for injunctive relief, damages or
otherwise in any court in the State of Florida
having jurisdiction thereof.

The other paragraph involving amending covenants goes as follows:

Any Property Owner shall have the right to
enforce the Covenants and Restrictions placed on
the Property by this instrument and, in addition,
XXXXXXXXXXX, Inc, retains the exclusive right to
amend, modify, change, or eliminate any or all of
said Covenants and Restrictions on any of the
Property which is owned in fee simple by XXXXXXXXXX, Inc.
at the time such amendment,
modification, change or elimination and further
provide that no change in any of the said
Covenants and Restrictions shall be made without
the written consent of XXXXXXXXX, Inc. or the
XXXXXXXXXX Foundation even though such entity
may have no real property to be benefited by
these Covenants and Restrictions.

The organizations mentioned in which I had blocked out the name above are not the homeowners association but a local non-profit charity that had once owned the land many of the local neighborhoods sit on.

MichaelK11 (Texas)
Posts: 432

Posted:

Quote:

Posted By JohnB26 on 03/11/2010 6:29 AM
EXCELLENT EXPLANATION

Thanks for the kind words, John.

RogerB (Colorado)
Posts: 5,067

Posted:

Quote:

Posted By KevinK7 on 03/10/2010 11:22 PM
I was curious as to how exactly renewing covenants worked. Here is an excerpt from a set of covenants:

These Covenants and Restrictions are to run
with the Subdivision and all of the Lots and the
Property located therein and shall be binding on
all parties, grantees, and all persons claiming
under them for a period of thirty (30) years from
the date of recording thereof, after which time
they shall be extended automatically for
successive periods of ten (10) years, unless an
instrument signed by a majority of the then
Grantees has been recorded agreeing to the
modification, amendment or revocation of these
Covenants and Restrictions.'

If the covenants state that they are binding for a period of 30 years, then does this mean that the covenants can be amended or renewed any earlier then the 30 years, or must the 30 year period be reached, and then renewed or face automatic renewal?

Just went through this with an HOA. It means they can not be amended for 30 years from the date of filing. However, if amendments are desired remember to get them approved and file them to take effect at the end of that 30 year period and before they are renewed for another 10 years.

KevinK7 (Florida)
Posts: 1,343

Posted:

How would one indicate that the amended covenants are to take effect at the end of the 30 year period?

Currently, my covenants were authored in 1983, but were amended 2 years ago (questionably by some accounts), but the association that had amended them have been trying to enforce them from the date of filing, threatening legal action regarding assessments that were not found in the original covenants but were written into the new set...

I had posted previously about this before, but there had been little developments in the court case involved, and I have been constantly reviewing paperwork, with this excerpt being of particular interest to me at the moment...

DarleneL1 (Florida)
Posts: 97

Posted:

Remember to check your CC&Rs after 30 years, they may be expired by MRTA (Marketable Record Title Act). Many communities don't realize that unless they revitalize the covenants in Florida, MRTA expires them on a lot in 30 years.

SureshD
Posts: 268

Posted:

An "EXPERT" is someone who has MADE all the MISTAKES! ;)

DavidC24 (Florida)
Posts: 31

Posted:

Our covenants state the following:

"The covenants and restrictions of this Declaration shall run with and bind the land, for a term of twenty (20) years from the date this Declaration is recorded, after which time it shall be automatically extended for successive periods of ten (10) years."

This means the deed restrictions would not run with and bind the land after 20 years if it did not automatically extend. It has nothing to do with amending the covenants. We have amended the covenants 4 times in the past 16 years with appropriate votes(2/3 of voting members).

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