"Mandatory" HOA vs. "Mandatory Maintenance" HOA

Started by KevinK7 • 6 replies • 2551 views

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KevinK7 (Florida)
Posts: 1,343

Posted:

I had finally obtained some of my HOA's board meeting minutes, and within, the president explains that we would require 100% of the homeowners to agree to become "mandatory", but we would not if we became what his lawyer called a "mandatory maintenance" association...

This centers around their push in the past few years of converting our voluntary association into a mandatory one. Essentially, the BOD wrote in their new covenants and bylaws that they can collect money from every homeowner regardless of membership, but I was curious as to the difference between the two - as in, if there was an actual legal difference... I don't recall ever reading anything different about the two, but I noticed statute 720 states the following regarding membership:

"Member" means a member of an association, and may include, but is not limited to, a parcel owner or an association representing parcel owners or a combination thereof, and includes any person or entity obligated by the governing documents to pay an assessment or amenity fee.

So I was wondering if my HOA board was mistaken...

MaryA1 (Arizona)
Posts: 7,043

Posted:

Kevin,

Frankly I don't know how an assn could require a property owner to pay assessments if that property owner chose not to belong to a voluntary assn. I've never heard of a "mandatory maint" assn -- did the HOAs attorney dream this one up? Check your deed restrictions (CCRs) for any mention of having to belong to an HOA. IMO, they can write whatever they choose in the amended CCRs; however, that does not mean that what they put in there is legal. If they continue down this path I'm afraid they are going to have a lawsuit on their hands.

KevinK7 (Florida)
Posts: 1,343

Posted:

They already do... this is how the board meeting minutes were finally disclosed!

My original covenants only encourage the homeowners to form a HOA. It does not specifically grant an association control. The original covenants also state they are binding for 30 years, meaning they will expire in 2013...

RogerB (Colorado)
Posts: 5,067

Posted:

Kevin, first of all a voluntary HOA Board can not amend Covenants and they can not require a homeowner to become a member of the voluntary HOA nor require them to become "manditory". Perhaps they are referring to trying to amend the Covenants to include becoming manditory (i.e. having manditory assessment and automatically being a member of the association). A voluntary HOA Board can enforce restrictions listed in the Covenants against any and all of the homeowners just as any homeowner has that right. Perhaps that is what is meant by "manditory maintenance".

ShellyA (Florida)
Posts: 1

Posted:

I guess I need to read our CCR's again, I know it says that each lot/property owner will pay a yearly assessment fee but I don't remember reading anything that says we have to form a HOA or is this implied? We're a relatively small deeded subdivision with most of the land undeveloped--13 lots on my road, only 4 have houses. Three of the houses have just been built in the last 4 years and we have just started enforcing the assessment fee etc.. I'm not sure if anyone can answer this but we have 3 lots (undeveloped) at the end of the road that refuse to pay assessments or any improvement fees, to avoid legal action, can we amend the CCRs to remove the lots??

KevinK7 (Florida)
Posts: 1,343

Posted:

Quote:

Posted By RogerB on 03/24/2010 10:22 AM
Kevin, first of all a voluntary HOA Board can not amend Covenants and they can not require a homeowner to become a member of the voluntary HOA nor require them to become "manditory". Perhaps they are referring to trying to amend the Covenants to include becoming manditory (i.e. having manditory assessment and automatically being a member of the association). A voluntary HOA Board can enforce restrictions listed in the Covenants against any and all of the homeowners just as any homeowner has that right. Perhaps that is what is meant by "manditory maintenance".

The actually state that the purpose of amending the covenants and restrictions are to make homeowners pay but remain voluntary. They insist that they are still voluntary but they require mandatory assessments in their rewritten covenants. They state that they are voluntary because once a transfer of title occurs or someone joins, then they become permanent, but before then, they have the choice to join, but not to pay.

In the board meeting minutes, the president states that to make the HOA mandatory, they would require 100% of the people to approve, so instead, their lawyer suggested writing into the covenants that every property must pay the HOA.

The HOA is actually a neighboring association that wanted to unite the entire neighborhood under one set of covenants (each section has their own covenants and only two of them formed HOAs). One of the formed HOAs believe they are the association over everyone because they amended their articles of incorporation to state that they are in charge of surrounding developments.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Kevin,

While they may have the authority to amend the CCRs the amendment must be legal and, IMO, this one is not. However, it will have to be challenged in a court of law. A challenge regarding the required vote to make a voluntary HOA mandatory could go either way; however a challenge that nonmembers are liable for paying assessments should be a slam dunk. But, of course, it would depend upon the mindset of the judge.

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