Need your advice - MESSED UP HOA

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JeniferS (Mississippi)
Posts: 16

Posted:

Ok - so I guess it is ok for HOA to sue you for dues? And where do I go to find out what the responsibility of board of HOA is to the homeowners- such as furnishing each home owner with a copy of the financials, convenants, rules, etc?? There has been ZERO documentation sent to us homeowners and no meetings - the meetings are held for board members at a neighbors house - please help -advise? Greatly appreciate it - Jen

MaryA1 (Arizona)
Posts: 7,043

Posted:

Jenifer,

Yes, it is OK for an HOA to file a lien to collect delinquent assessments. They even have a right to foreclose on your property if you fail to pay the judgment. This should be all spelled out in your CCRs.

Also in your CCRs and/or bylaws it should be stated if it is a requirement of the BOD to furnish the members with financial statements. As for copies of the CCRs and bylaws, you should have received those when you purchased your home. If you didn't the board should provide copies to you, upon your request. They may charge a copying fee and/or an administrative fee.

As for board meetings being open to the members, that should be addressed in your bylaws. Many assn bylaws to not require the BOD to hold open meetings; however, some states have open meetings laws which do require all meetings to be open to the members. I don't know if your state has HOA laws or not but you may want to check this out.

One final note, just because you think your BOD isn't operating correctly is no reason to withhold paying your assessments. Please excuse me if I'm wrong, but the tone I get from you message is that you have that impression. The only reason a member should ever withhold paying their assessments would be due to financial difficulties and even then they should meet with the BOD to discuss their situation and possibly work out a payment plan. Never, never withhold paying your assessments because of a disagreement with the board.

JeniferS (Mississippi)
Posts: 16

Posted:

Mary- Thank you so much for your feedback - Our fees have been paid in full - A neighbor called me stating they were being sued by HOA for not paying dues -They must go to court or pay. The HOA was established after homes were built - builder never had a HOA - we never paid anything at closing and was told there was not a HOA - it recently has been established -but all I know is that we paid our fee for the year and have received NOTHING - but know the board meets all the time at the presidents house - Thanks again for your help - any advise is greatly appreciated!

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Yes, they can sue you for your dues.

When the HOA wins in court, and they will, the judge can even order the court to garnish your wages. If you still refuse to pay a court ordered settlement, a warrant can be issued for your arrest for failure to comply with a court order.

These days many HOA's are choosing to sue vs liens and other collection methods because it people pay. Its more work for an HOA, but in the end, people tend to pay court ordered settlements.

As for financials, ask the person in charge of the HOA.

As for documents, go to the townhall/clerk/records/etc and have them pull the file on your property. You will probably see all your HOA documents in there. I've met many people who have never even seen their property file. You wouldn't see it in any real estate transaction, its up to you to ask the townhall/clerk/records/etc for it.

Is your HOA still being developed? It may be still in control of the developer, therefore no meeting, financials, etc.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

PThe HOA was established after homes were built - builder never had a HOA - we never paid anything at closing and was told there was not a HOA

Double check your deed. Even though the HOA wasn't formally organized at the time or the sale, a deed restriction is probably in there.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Following up on Mary's post, the HOA most certainly can sue (as in small claims court sue, in addition to filing a lien and foreclosing on the lien) in most states. Many, if not most, HOA governing documents allow for that with language similar to this:

Section 10. Effect of Non-Payment of Assessments; Remedies of the Residents Association. Any assessment not paid by the due date shall bear interest from the due date at the maximum rate of interest, then allowable by Kentucky law. The Residents Association may bring action at law against the owner personally obligated to pay the assessment, or foreclose the lien against the property, and interest, costs reasonable attorney fees of such action or foreclosure shall be added to the amount of such assessments. No owner may waive or otherwise escape liability for the assessments provided for herein by abandonment of his lot.

******************

Also, it is the obligation of the seller and/or the title attorney to inform and provide you with the copies of the deed restrictions that run with the land you are purchasing.

In many HOAs, the association is NOT a party of the private sale of the lot/home.

Also, the HOA does not HAVE to provide you with copies at all, though many will or might if you ask them.

As you are the owner, it is your responsibility to ensure that you have all the documents associated with the title and deed to your property, not the HOA. You can obtain copies yourself through your county or parish's deed room or county clerk.

Regarding if the board's "duty" to provide certain information, the only answer that is relevant is: That depends. . . .

It depends, as Mary said, on the controlling documents for your association and your state law.

For example, our controlling documents to not REQUIRE that we provide the association members with any financial statements of any kind at any time, unless a specific member asks to see them. We do, however, provide such a thing once a year at our annual meeting.

In regards to the deed restrictions, I've already mentioned that we (the HOA) is NOT required to provide those to the residents.

However, our controlling documents DO require that we provide all residents with any amendments to the deed restrictions when they pass, and copies of any RULES that the board passes or establishes under Rules & Regulations.

In any case, however, Mary is correct to point out that even if your state and/or controlling documents say that the board has a responsibility to provide all those things, their NOT providing it is still not connected in any way, shape or form to your paying your assessments/dues.

It would be in your best interests to get those straightened out as soon as possible before you try to nail the board for any alleged failure in their responsibilities.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Jenifer,

I'm curious to know who formed the HOA if the builder didn't. How old is your community and when was the HOA formed? Were you given the opportunity to vote as to whether or not you wanted an HOA? Does your deed indicate there are deed restrictions on your property?

You need to obtain copies of all the gov. docs -- articles of inc., CCRs (covenants), bylaws and any rules. The CCRs should either state -- or give some indication - whether or not there should be a mandatory HOA to run the assn. One indication would be if it states there are mandatory assessments.

JeniferS (Mississippi)
Posts: 16

Posted:

The builder deeded over the common areas -little park and pond - that is about all I know - We did not get a notice of a meeting - but I heard they elected officers - then all we received in the mail was a notice to pay dues - which we did - but since then no meetings, mailings-nothing!!!

MicheleD (Kentucky)
Posts: 4,491

Posted:

Quote:

Posted By JeniferS on 04/21/2010 4:49 PM
The builder deeded over the common areas -little park and pond - that is about all I know -

When?

For the record, if the common ares were "deeded over" it was most like to the HOA that was turned over at some point. Indicating that an HOA has existed, albeit controlled by the developer.

Quote:

Posted By JeniferS on 04/21/2010 4:49 PM
We did not get a notice of a meeting - but I heard they elected officers - then all we received in the mail was a notice to pay dues - which we did - but since then no meetings, mailings-nothing!!!

Could you be so kind as to answer them before we get into the details of the above?

How old is your development?

Does your deed indicate deed restrictions on your property?

How long have you lived in the community? In other words, have you lived there since the development began, or did you purchase at some later date?

PS: for the record, we hear this all the time: "I never get any meeting notices."

Next to, "I didn't know we had an association," it is probably the next most frequent comment.

The people who say it truly believe it.

But we always check the mailing list and the person's name/address is always on it.

So unless the post office is randomly throwing away notices, all we can say is that perhaps, not realizing what it was (junk mail, perhaps?) they threw it away without realizing it.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Jenifer,
I'll take your side and say if there is a mix up here beween you and your management, it sounds like the management can share the blame. But the folks are not telling you anything but the truth and if you want to progress this along, answer the questions they ask. You certainly sound like you can speak for yourselve and you found this site so you are making an effort. It's natural to believe you are being singled out when you are receiving heresay information and at your stage in this process you should be posting about what the Board's response was to your inquires. All will be better when you understand what is happening. It may be worse than you imagined it may be a well run association, but you have to ascertain that for yourself. If you take some time and make some effort and keep posting here, you will get some help if you get lost.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

"I didn't know we had an association," it is probably the next most frequent comment.

When buying a house people never read that annoying fine print stuff they add to paperwork or they just don't understand it.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Steve,
What to me, is more confusing, is folks don't ask the questions that would cause them to be aware of what they are doing.

They seem to have no interest in the association and if aware of one, they seem to make a conscious effort to avoid any contact, and for the few that do, it is "Hey I just purchased a unit here, and I wanted to touch base, but don't call me to volunteer as I just bought the place and am too busy to do anything else." Five years down the line, they don't change at all.

JeniferS (Mississippi)
Posts: 16

Posted:

Let me clear up the air -- I had my house built in a brand new subdivision being developed!! My builder was awesome -The developer never formed a HOA.

So - we were like the fifth house built - There was no HOA!!!! We knew that when we went to closing - I have the drawing and details to my lot as well as the neighborhood convenents.

As for the neighborhood - I guess someone started the talk of making a HOA- I did find out yesterday - The ones that wanted to start it - did find out the developer had NEVER started a HOA- So the ones that wanted to get it started -I guess filed papers and started one - naming themselves as officers- just to get it started - I also found out they told a few neighbors "word of mouth" last April they were holding a meeting to elect officers - which a few neighbors attended and elected officers.

I am not here to be negative on the HOA - the ONLY mailing I received was to pay the dues - which we did - now almost a year later - nothing!

I am a pretty smart business person!!! - so I know something is not right with the way this HOA is being ran! A few questions-

1. Where would I find the by-laws written for this HOA (like their rules, etc. That would tell me alot - because I do not know if there is a law that the HOA has to send out quarterly financial statement - minutes of meetings, etc.

2. I know for a fact they have been have bi-weekly meeting (OFFICERS ONLY) - should they have minutes on these meeting - so I can get up to speed on what they ideas and thoughts are.

3. Can the HOA enforce the convenent rules?

I appreciate all the feedback- any questions - please ask!!
Thanks

JeniferS (Mississippi)
Posts: 16

Posted:

Michele- maybe this will answer your question

Could you be so kind as to answer them before we get into the details of the above?

How old is your development? 5 years old

Does your deed indicate deed restrictions on your property? Such as?

How long have you lived in the community? In other words, have you lived there since the development began, or did you purchase at some later date? 5 years

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

There was no HOA!!!! We knew that when we went to closing - I have the drawing and details to my lot as well as the neighborhood convenents.

You said you were provided the neighborhood covenants. Ding! Ding! Ding! That means an HOA. Only an HOA would have neighborhood covenants. The paperwork doesn't need to specifically say "HOA". If there was no HOA, there would be no covenants and you would only be bound by normal city rules, not extra rules on top of city rules.

The developer placed covenant restrictions on the property when he subdivided it, before you bought it, this started the HOA. It doesn't matter that the HOA had no officers, no dues, no anything. This can all be started up later, and it looks like that is what your neighbors did.

Quote:

Can the HOA enforce the convenent rules?

Yes. Those "are" the covenants of the association. What good would covenants be if there was no one to enforce them.

Its part of your deed, and its nearly impossible to remove. You need to pay your dues, or sell the house.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

JeniferS,
I assume the HOA bill has an address on it. Write your questions to that address. Or if you know your officers are having bi-weekly meetings, stop by the meeting. Ask them questions or who you can contact for questions.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Jenifer,

The "neighborhood covenants" that you have are the CCRs that is the main governing document for the HOA. Read them thoroughly and see if there is an article addressing assessments. If there is and it says assessments are to be paid by all property owners, then that means there should be a mandatory HOA. If the developer did not form one then perhaps he wasn't concerned with collecting assessments. The normal procedure is that the developer forms the HOA and appoints a board of directors. Assessments are collected from the time a lot is purchased. When a certain % of lots have been sold (as outlined in the CCRs) the developer turns over the HOA to the members (all the property owners). At this time he deeds over the common areas to the HOA. Also at this time a meeting of all members (property owners) is held for the purpose of electing a board of directors. It appears your assn was formed a bit backward and perhaps everything was not done legally. You need to determine if yours is a mandatory or a voluntary assn and go from there.

Again, look through your "neighborhood covenants" and see if there is an article on assessments. If there is, if you would post it here -- word for word -- we may be able to help you further in determining what type of HOA is required. Also of help would be to know what the article on "membership" says.

Yes, the HOA has the power to enforce the covenants rules; in fact that is generally one of the duties of the BOD together with maintaining the common areas and amenities. That also should be spelled out in the CCRs (covenants).

Some states require that the bylaws be recorded with the Co. Recorder. Check with your Co Recorder's Office or they may have a website which you can check out on your own. You would key in the name of your HOA and all the documents recorded should appear.

IMO, whoever is on the board of directors they must not be very saavy business leaders. A FEW property owners getting together to form an HOA, electing a board of directors, sending invoices to ALL property owners to pay assessments to an HOA that no one even knew existed and not informing ALL property owners exactly what is going on certainly does not equate to "getting off on the right foot". Since you're coming up on one year since this all transpired, you should be receiving notice of an annual meeting as they are normally held once a year. The main objective is to elect member's to the board of directors to replace those directors who's terms are expiring. This would be a very good time to have all your questions answered. My first question would be to ask why ALL the property owners weren't informed about forming the HOA and electing the BOD. Second question would be, by authority was the HOA formed.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Jenifer,
I think we all know you are between a rock and a hard place. We also appreciate the fact you are a pretty smart business woman. The posting here are attempts at being helpful. To that end, let me suggest one. You mentioned that your builder was awesome, so, apparently he impressed you. Now this builder knew when he built your house what kind of restrictions the property was under. Maybe he would have a copy of these lost covenants. I also believe as Mary, and others, they are recorded in the court house somewhere. My courthouse as an information phone# and an information walk in desk. Something you may want to try. I find the court house people to be very helpful, that's their job.

JeniferS (Mississippi)
Posts: 16

Posted:

Thank you all for responding - As my post have mentioned- I have paid my dues - please quit posting I need to pay my dues!!!!

In the state of Mississippi - a subdivision in the county does not fall under the city - don't know about other states - so the convenants that I have are the original ones before we bought our lot -- Convenants for a subdivision in a county does not mean there is a homeowners association. Convenants are there to protect the homeowner.

I plan on stopping by the presidents house - I will ask for minutes of any meeting, their bylaws and to be put on their mailing list - both snail mail and email.

I am not here to bash what has been done -I just know when we decided on what lot we wanted - we agreed with the convenants and knew at that time there was no HOA -

I very much would like to dedicate my time to the HOA - that is why I joined this board - again - thanks for your advice and anything else you want to add -please feel free.

Thanks

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

Convenants for a subdivision in a county does not mean there is a homeowners association. Convenants are there to protect the homeowner.

Jennifer,
Ask yourself this..... who can enforce the covenants? Its not the county.

The county cannot enforce private covenants since they are private agreements or contracts and the county is not a party to the covenant. Only the parties subject to the covenants may enforce them. Subdivision covenants are private restrictions on the use of land and are basically private agreements or contracts.

So who's job is it to enforce the covenants and protect the homeowner? The association.

LeslieJ (Florida)
Posts: 7

Posted:

Jenifer; it would be interesting to know what the state law is on meetings. Most states require a meeting notice and an agenda open to all homeowners.

GlenL (Ohio)
Posts: 5,491

Posted:

Jennifer, look for language similar to this on your deed:

Subject to easements and restrictions of record, including, but not limited to those easements, covenants, conditions, and restrictions set forth on the Record Plat of Happy Dreams Subdivision, Section One, as aforesaid, and the Declaration of Covenants, Conditions and Restrictions and Reservation of Easements recorded in Official Record Volume 0000, Page 0000, as amended and supplemented.

As to where to find information, I would start with the County Recorder's Office all of the information you are seeking is on line in my county. Also you could check with the Mississippi Secretary of State's web site for filing information on the corporation that is the HOA. Included should be the names of the person's who formed the HOA and the name and address of the HOA's statutory agent.

Studies show that 5 out of 4 people have problems with fractions

JeniferS (Mississippi)
Posts: 16

Posted:

Thanks Glen!!

JeniferS (Mississippi)
Posts: 16

Posted:

OK-so get this - They have not even filed with the Secretary of State -

The developer did file in 2008 -status is good standing - wouldnt the new officers had to file with the state - ???

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Sorry Jenifer,
To my knowledge, if they (developer filed with the state and we are only talking 3 years), the HOA is still on the books, still in effect and you are part of it apparently. Someone is leading the parade, as suggested you need to find out who. As Glen suggested look for the registered agent on that filing in 2008, this might help and you could draw a blank. Keep digging you will find it. I still don't understand why you just don't go and ask one, (any of them) Board members,the questions you want answered. When the developer filed in 2008, what name did he use, meaning what corporation name? What is your development called today? Bet they are the same or almost identical. Some states require that application be made every year to keep the corp. active and in good standing. SC recently deleted that requirement to renew. You stay on the roles until you dissolve the corporation and to dissolve an HOA corporation is a tough tough job.

MicheleD (Kentucky)
Posts: 4,491

Posted:

And when you say file anew each year, Robert, what that means most of the time is an annual report.

And the annual report not being filed does not dissolve an HOA, it only means not in good standing and can be reinstated at most anytime by filing the AR and paying the appropriate fees.

The HOA can still exist and do business. Some HOAs simply forget.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Michele,
You are dead right Michele. That's why I think SC deleted the requirement to renew, just too much trouble to keep track of. I would be afraid to guess how long some of these corp have been on the books and just sit there.

JeniferS (Mississippi)
Posts: 16

Posted:

one more question - The covenants have nothing in relating to a HOA - nothing - so would the homeowners association now have to have by-laws?

MicheleD (Kentucky)
Posts: 4,491

Posted:

I would sure love to read your covenants.

My guess is that there really are some by-laws somewhere. And articles of incorporation.

But you would still have to go back to the registered agent at the time as a starting point.

DwightT (Idaho)
Posts: 664

Posted:

Quote:

Posted By JeniferS on 04/22/2010 11:51 AM
OK-so get this - They have not even filed with the Secretary of State -

The developer did file in 2008 -status is good standing - wouldnt the new officers had to file with the state - ???

What did the developer file? Did he register an HOA for your neighborhood or did he register something else (like maybe his development company)?

Contrary to some other statements here, the fact that there are deed restrictions does not automatically mean that there is an HOA. It is possible to have restrictions without having an HOA, in which case it is up to the individual homeowners to enforce the restrictions, usually with the help of the courts. The ones that I've seen like that usually limit the number and size of buildings in order to limit the use of limited resources such as water.

I feel that it is unlikely that there is no HOA in your situation, but it is possible.

JeniferS (Mississippi)
Posts: 16

Posted:

Convenants attached -Please let me know what you think!!! Thanks

What I would like to know - is how can they take action (sue someone) if there is nothing mentioned in convenants

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SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

how can they take action (sue someone) if there is nothing mentioned in convenants

First page.

Binding on all parties....... if they violate covenants..... recover damages or other dues.... judgement by court.... etc, etc.....

Your covenants are typical of many HOA's

MicheleD (Kentucky)
Posts: 4,491

Posted:

Quote:

Posted By JeniferS on 04/22/2010 1:18 PM
Convenants attached -Please let me know what you think!!! Thanks

What I would like to know - is how can they take action (sue someone) if there is nothing mentioned in convenants

This part right here:

. . . it shall be lawful for any person or persons owning lots in this subdivision to prosecute any proceedings at law or in equity against the person or persons violating or attempting to violate any such covenants, limitation or res1riction and either to prevent him or them from doing so or to recover damages or other dues for such court violations.

GlenL (Ohio)
Posts: 5,491

Posted:

Jennifer, I read them twice and I agree with you there is nothing in them about forming a HOA. In fact the only penalty that I can see for someone violating any of the Covenants is for one of their neighbors to sue them in court, nor do I see any provision for assessing dues. Time to talk to your attorney.

Studies show that 5 out of 4 people have problems with fractions

MicheleD (Kentucky)
Posts: 4,491

Posted:

And this section clearly mentions the existence of an association, or at least the intent of the controlling documents that an association exist/be formed. So when and if it is, it would be mandatory.

16. Owner's Easement of Enjoyment. Every owner shall have a right and easement of ingress and egress and enjoyment in and to the Common Area, if any, which shall be appurtenant to and shall pass with the title to every Lot, subject to the following provisions:

(a) The right of the Association to charge reasonable fees for the maintenance, repair or reconstruction upon the Common Area, if any, which the Association may acquire,

(b) The Common Area, if any, cannot be mortgaged or conveyed without the consent of at least 213rds of the members. If acquired, such Common Areas shall be free and clear of all encumbrances.

(c) The right of the Association to adopt rules and regulations for the benefit of the Owners respecting use of the Common Area.

17. The maximum annual assessment for membership dues shall be Seventy-Five
($75.00) Dollars and no cents. Any changes in dues will be subject to a vote of all
members of the Association.

It's sounding like this group who formed the HOA did so at the turnover (deeded turnover of the common areas).

Someone somewhere has the key. Hopefully.

But even if they may not be an HOA with the i's dotted and the t's crossed, they are still residents under the same covenants as everyone else and have the ability through those covenants to sue for dues, as mentioned in the previous post.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Quote:

Posted By GlenL on 04/22/2010 2:01 PM
nor do I see any provision for assessing dues. Time to talk to your attorney.

17. The maximum annual assessment for membership dues shall be Seventy-Five ($75.00) Dollars and no cents. Any changes in dues will be subject to a vote of all members of the Association.

GlenL (Ohio)
Posts: 5,491

Posted:

Nods in agreement. I should not have tried answering it on pain meds, totally went by that twice. Mea Culpa.

Studies show that 5 out of 4 people have problems with fractions

JeniferS (Mississippi)
Posts: 16

Posted:

thanks to all - it is making a little sense!!! but they are charging in addition to court cost -$20.00 late fee. I really think these convenants are vague - but I now do see where they can sue - but not sure about the late fees - thanks again!

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

n addition to court cost -$20.00 late fee.

The late fee will be the least of her worries. Wait until she gets the $1200 lawyer bill that the HOA needed to hire to sue her. Yes, the court will make her pay that too.

JeniferS (Mississippi)
Posts: 16

Posted:

The developer was the registered agent on filings with the sate- which was filed with the state four years after our house was built - no fees were ever collected - now there are new officers but the developer is no longer involved- The states filings have not been updated with the new officers (they were elected in 2009) - so where does this stand ?

Also the convenants I received in 2004 were never filed - now there are different covenants filed in 2006 than what I have - where does this stand?

Developer deeded over common ground to the HOA - but as far as the state filings are - The developer is still the registered agent with two people who have never lived in our subdivision as incorportors- no one is named as officers - where does this stand?

Again - thank you thank you - for all the advice --

If anyone would like to give me their email address- I will be glad to email all the documents I have-

JeniferS (Mississippi)
Posts: 16

Posted:

Quote:

Posted By SteveM9 on 04/22/2010 3:09 PM

n addition to court cost -$20.00 late fee.

The late fee will be the least of her worries. Wait until she gets the $1200 lawyer bill that the HOA needed to hire to sue her. Yes, the court will make her pay that too.

Steve- I have paid my dues-I am helping a friend out -I just paid the dues not knowing the truth behind this HOA -

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Jenifer, Your:See ((((((( ))))))))))))))))

The developer was the registered agent on filings with the sate- which was filed with the state four years after our house was built - no fees were ever collected - now there are new officers but the developer is no longer involved- The states filings have not been updated with the new officers (they were elected in 2009) - so where does this stand ? (((((((((You have lived there for 5 years. That makes you 2005. That make the state filing of the Corporation 2009. You say the new officers were elected in 2009 and were not filed with the state. Did you ask the new officers this question? Probably there is no requirement to register anything but the name and an agent. Like that in SC. The reason the new officers didn't file is I am guessing they didn't know enough to file.)))))))))))))))))))))))))))

Also the covenants I received in 2004 were never filed - now there are different covenants filed in 2006 than what I have - where does this stand?
(((((((((((((If I am not mistaken there was a date stamp and a ledger assignment on the document you posted. That was filed with the court house. The officers filings don't have to be filed anywhere. Officers change all the time in HOA's you would go crazy filing each change in the Board. You are supposed to file changes in the covenants. Again, ask the Board.))))))))))))))))
Developer deeded over common ground to the HOA - but as far as the state filings are - The developer is still the registered agent with two people who have never lived in our subdivision as incorportors- no one is named as officers - where does this stand? ((((((((((((((((((((((When the developer deeded over the common property, there absolutely should be a change filed at the courthouse. The business corporation filing should have been done by your board. That is their responsibility. Ask the Board, we have no way of knowing what they were thinking.)))))))))))))))))))))

Jennifer, I guess it is plain by now, you are going to have to confront the Board. Now since you pay your dues and have in the past and made no effort to find out anything else, maybe you are just happy going along..........I don't know. But, now you are doing this for a friend and it is beginning to look like you want to advise your friend how to load her gun when she decides to go shoot the Board out of the water. Why else would you, personally, not contact your Board? But whatever else is going on in all this, and some evidence seems suspect as far as being handled properly, this is no reason for us to encourage you to fight the Board or more correctly, fight the Board for your neighbor.

These people involved in all this are your neighbors and you are part of the neighborhood, that means you and your neighbors are not islands. Their will be good neighbors (your Board members included), and there may be some bad, but............there you are........it is what is is. You may find this whole experience something to build on. I am curious, has your neighbor ever gone to the Board and face to face asked them if something can't be worked out. The Board is not looking to make money, in fact your covenants probably make it difficult to account for fines and any other kind of income, I expect you are a non-profit corporation and must abide by non-profit laws. The Board will know.

MicheleD (Kentucky)
Posts: 4,491

Posted:

For the record, Jennifer, most of the deed restrictions that were handed out to the people in our development with the original lots did not have filing stamps on them. In other words, they were copies of what was boilerplated and the developer's secretary did not make and hand out copies that were file-stamped. Also there are multiple sections in our development, and the copies the developer gave to the homeowners (usually via the builders, many of whom have nothing to do with the developer) were not file-stamped either.

But if you go down to the deed room, with my title is the reference to the stamped copy and copies of any subsequent amendments.

So is the copy you have from the builder or developer or from the Deed Room?

Also that the developer is listed in "state filings" as the registered agent for the association four years after your house was built (I thought you said your house was built in 2005, so four years later would be 2009, but you said somewhere else that he was shown to have filed in 2008, and was in good standing, then said no new officers were filed in 2009, so not in good standing -- that usually means the Annual Report, by the way and not filing it does NOT dissolve the HOA, it just incurs fines, generally minor in nature.)

So I'm very confused about the timeline again.

My point is that the developer filing state filings as the registered agent is another strong indication that the HOA is real and legitimate.

So can we reach a consensus that the HOA is probably real, but possibly still going through a huge learning curve by the officers who now are responsible for the administrative functions of it?

It doesn't necessarily mean it's being run poorly, just not up to speed yet.

As Robert pointed out, these are most likely neighbors just like you and are trying to do the right thing. They may not have a lot of guidance, don't know what they don't know or need to know and are learning as they go along.

They probably realize the top priority is to get the assessments in. And they are likely finding one of the first obstacles to be people not wanting to pay them.

They probably don't know they're supposed to have written minutes. Our board went almost 2 years before they figured that out.

Perhaps when you approach them it could be as someone who is seeking to help with the transition (from developer to neighbor/member investment of time, energy, and talent), and offer recommendations, solutions, and advice.

Help point them to resources that can guide them in their learning curve. Offer to be on a committee to locate and/or draft bylaws. . . .

MaryA1 (Arizona)
Posts: 7,043

Posted:

Jennifer,

Well I'm going to throw a monkey wrench into this whole discussion. IMO, the HOA that was formed was not formed legally in that all the members did not have the opportunity to vote as to whether or not they wanted an HOA and the BOD that was elected was not elected legally as all the members were not informed of a meeting to elect a BOD.

No where in the covenants does it say there shall be an HOA. There are no articles on membership, assessments, enforcement, etc.

The CCRs as written are the same as ones written for deed restricted properties that have no HOA. I've owned such properties so I know what those type deed restrictions look like. Even though the covenants say assessments can be charged and even the maximum amount it doesn't say who is resp. for paying them nor does it say who shall collect them. The CCRs state any property owner may enforce the restrictions but it does not say the HOA has this right. There is absolutely nothing in the Covenants which give an HOA the authority to do anything. Several times it mentions the Architectural Committee or the developer as having the authority to do something, but never the HOA or the assn.

Frankly I think an HOA attorney should be consulted for an opinion as to the legality of the HOA and whether or not the BOD that is operating has the authority to lien property and charge late fees and perhaps attorney fees. Where do they get this authority? They may have the right as individual property owners but not as the BOD of this HOA. Note that even the covenants are titled in the name of the subdivision not in the name of an HOA.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Michele,

FYI, the copy of the covenants that Jennifer posted appears to be a recorded copy. It has the book and page number, the name of the Co. and is dated 3/22/06.

I'm curious to know how these "state filings" were filed -- under the developers name or under the name of an HOA. If an HOA, then when was it incorporated and were articles of inc also filed with the sec of state. Then, if the developer filed as an HOA why did the members have to form an HOA?

I also wonder who the deed to the common areas is made out to. Was it made out before or after the members formed the HOA?

So many questions. . .

MaryA1 (Arizona)
Posts: 7,043

Posted:

Correction.

The following statement which I made, "There is absolutely nothing in the Covenants which give an HOA the authority to do anything.", is incorrect. The covenants do state the assn may charge an assessment for repair and maint of common areas, IF ANY and may also adopt rules concerning the use of the common areas, IF ACQUIRED.

Jennifer mentioned the developer deeded over the common areas; I'm wondering to whom the deed was made and when this was actually done.

JeniferS (Mississippi)
Posts: 16

Posted:

Mary and Michele - would you mind giving me you email - I have several more documents - that could help put this story in place-but do not wish to post on her - Thank you a million for your advice and input!!!!!!!!!!!!!

JeniferS (Mississippi)
Posts: 16

Posted:

Quote:

Posted By JeniferS on 04/23/2010 8:06 AM
Mary and Michele - would you mind giving me you email - I have several more documents - that could help put this story in place-but do not wish to post on her - Thank you a million for your advice and input!!!!!!!!!!!!!

It was deeded over the HOA --but no where does the Sec of State have any documents on the developer stepping totally out of it nor the new names of the officers

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

Mary and Michele - would you mind giving me you email - I have several more documents

I think Jennifer is looking for some kind of "free" lawyer. LOL

MaryA1 (Arizona)
Posts: 7,043

Posted:

Jennifer,

Here is my email:

[email protected]

I find this all very interesting and would be pleased to help sort it all out. It's amazing the problems some developers cause; oftentimes unintended.

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