Subdivision Legal Description Question

I live in a neighborhood that was developed in three sections that were each given distinct legal descriptions along with a subdivision title and number when recorded in the county recorder's office along with the covenants specific to that subdivision. If each is it's own "subdivision" and the covenants for each subdivision calls for a majority vote to amend it's covenants, would it be a majority vote of the sum of all three subdivision lots that would be required to change the covenants of each subdivision or would it be the majority vote of the lot owners within it's individual subdivision?

Kind of wordy.....hopefully it's understandable

There's no mention of a master association

Does each subdivision have its own Board or is there one Board for the entire community? Each set of covenants should have a description of what they cover and how to amend them. From the way you have described it and if there is no Master Association I would say each document can only be amended by those bound by it.

Jeff:

Our development has 10 separate "phases" or "subdivisions" built at different times, but all an extension of the original development plan per the initial documents filed with Phase I.

Each phase has its own set of restrictions, and they mostly mirror the Phase I restrictions, except in some areas like lot size, number of trees required, minimum square footage, etc.

Any changes to our documents, regardless of the Phase affected, requires the majority vote of all members of the association, meaning all residents in all phases of the development.

Ours does not mention a "master" association, either.

Before I can go much further, however, I have a few additional questions.

1) How old is your subdivision (and how old is each of the other 2 subdivisions)?

2) Is the developer still involved in the subdivision?

It's possible that there is an association, but that you are simply not aware of it. It's also possible that there are by-laws, but are not aware of them.

I think out of our 600 or so residents, only a handful ever received the by-laws. The board members actually had to request them from the developer prior to transition, and most of the board members weren't even aware that any by-laws, or articles of incorporation, for that matter, existed.

You might want to try a search on your state's Secretary or State website to find any documents that may have been filed with them of which you aren't aware.

By-laws and articles of incorporation don't always need to be filed with the county, but most need to be filed with the Secretary of State.

Right now, however, I'm leaning towards any changes requiring a majority vote of all three subdivisions.

But that may change when more information is provided.

Michelle..Answering your two questions from your response, The development is less than 4 years old including the other two subdivisions and the one subdivision that I live within. Yes, the developer is still involved.

The confusing part is that the covenants were recorded separately for each of the three subdivisions, documenting only the particular lots within it. So when reading the covenants for my subdivision, there's no reference to the other two subdivisions, but just the subdivision and lots within it. Is there another document that ties all three subdivisions together within the "master" subdivision that I should be looking for at the recorders office?

Jeff, then it is apparently premature for anyone to be making any changes or amendments to the restrictions, if they are not the developer.

None of the covenants in our phases reference the other phases either, or any of the other lots, or any specific common area. However, when we passed various amendments, we addressed specifically addressed the Deed Book and Page that the separate covenants were recorded and specified to which section or subsection within THOSE covenants that the amendments apply, since each set is different. Some more so than others.

(Example:

FOURTH AMENDMENT
to Declaration of Covenants, Conditions & Restrictions of XXXXXXX

Section 1, Deed Book XXXX, Page XXX
Section 2, Deed Book XXXX, Page XXX
Section 3, Deed Book XXXX, Page XXX
Section 4, Deed Book XXXX, Page XXX
Section 5, Deed Book XXXX, Page XXX
Section 6, Deed Book XXXX, Page XXX
Section 7, Deed Book XXXX, Page XXX
Section 8, Deed Book XXXX, Page XXX
Section 9, Deed Book XXXX, Page XXX
Section 10, Deed Book XXXX, Page XXX

WHEREAS, ARTICLE II, SECTION 9, SIGNS. shall be amended in its entirety as follows: )

That example was a bit easier, since the covenant on signs was the same Section Number in each set of covenants, but for others we would have to specify in each set which section/subsection was being affected.

We have no 'master' either, however, the initial phase, and all subsequent phases, mention additions to existing property that extends "coverage", even though each subsequent "additional property" also has its own set of covenants.

Like this:

Section 2. Additions to Existing Property. Additional residential property and common areas may become subject to this Declaration, or may be annexed to the real property subject to this Declaration, as follows:

(a) Additions in Accordance with a General Plan of Development, Developer intends to make this property a subdivision to be developed in accordance with current plans and known as XXXXX. Additional land described in instrument recorded in Deed Book XXXX, Page XXXX, in the office of the XXXXXX, including certain common properties which may contain recreational facilities.

Developer reserves the right to create cross easements and to restrict all of the properties according to the terms of this Declaration. The common area initially covered by this Declaration shall inure to the benefit of the owners of any new lots within XXXXX, which may become subject to this Declaration or a similar set of Deed Restrictions, and of lots recorded earlier, each to enjoy the common area of the other and to have and to hold the same as if each new lot had been developed and subject to this Declaration simultaneously.

All additions shall be made by filing with the Office of the Clerk of XXXXX County, Kentucky, a Supplementary Declaration of Covenants, Conditions and Restrictions with respect to the additional property, which shall extend the scheme of the covenants and restrictions of the Declaration to such property. The Supplementary Declaration may contain additions and may be necessary to reflect the different character, if any, of the added properties and as such are not inconsistent with the scheme of this Declaration.

(b) Other Additions. Additional residential property and common areas which are not presently a part of the general plan of development of XXXXX, may be annexed to XXXXX by Developer.

So while each phase, or "subdivision," has its own set, they are all really part of one larger development.

It's very likely that somewhere in the first set of your documents, annexation is accounted for as well.

But again, since the developer is still in control, he will likely have control of the votes, regardless of how you or we think they need or should be calculated.

And he can also, before he turns over to you guys, create the "master" that you are seeking.

It depends. Most likely NO if they are all supposed to be annexed together.

Remember, ours has 10 sections, but in order to change or amend any of the sections, it required a membership majority of the entire subset of sections.

But, again, as your development is under declarant or developer control, that is all moot at this point anyway.

JeffM:

You misunderstand me, he is in control until he has turned over the keys to the residents.

(the keys are metaphorical)

It's hard to say which of his is correct, Mary, since we don't know how many votes he had with the class B status. Our Developer had something like 3 or 4 votes per lot.

And we also don't know if that means the number of lots left in the ONE phase/subdivision, or all three combined.

Still too many unknowns.

After only 4 years, it would seem to me that it would be premature to presume that the declarant is not still in control.

It's possible, but I would sure love to get a look at some of the language in the original poster's documents.

Michele,

The other thing that I find strange, but have heard it said by others, is that there is no HOA. I think this happens when the State does not have an agency that the developer must deal with. In AZ the HOA is formed at the time the public report is filed with the Dept of R.E. which is b/4 any construction is even begun. The OP says the HOA is not to be formed until after the declarant transitions the HOA, but how can he transition it if there isn't one? Also, how can he collect assessments if the HOA has not been formed? I wonder who the checks are made out to!! This does not make sense to me at all.

I agree, there are too many unknowns. And, yeah, I would love to see the CCRs too!

Jeff I"m not an attorney and this is not legal advice but I strongly suggest you get some. In my opinion they can form a voluntary HOA but they cannot mandate that you join and I strongly suggest you do not sign any papers you receive without legal representation. As I read the document you posted, your subdivision is specifically designed not to have an HOA or assessments. Specifically there is no mention of forming the corporation that is the HOA or electing a Board of Directors. The only provision is for electing the ARC and it specifically states in #30 that it is up to the homeowners to enforce the covenants in a court of law.

I sure would like to see the actual deed restrictions that were filed with the title/deed.

These look to be a handout, PR copy and not a legally filed copy.

Why it matters to me is that there may be items on the portion that was filed that may not be in this PR version.

But in addition to that, this particular document makes me uneasy that any covenants were actually filed to begin with. In which case, it's possible that not a single thing on that piece of paper is worth anything.

Also, I wonder if there are by-laws? Probably not.

Well evidently there is an HOA in at least one of the subdivisions because I found a sales listing for a home on **** Wild Orchid Way in the Wildflower Estates subdivision that listed the HOA fee as $100.00 per year. I also found where the builder went to the Columbus Plan Commission a year ago to change one section to allow for smaller homes under a different name because the big ones weren't selling.

Jeff since the Bartholomew County Recorders office doesn't have the documents on line you really need to schlep down there and look at All of the documents on file for your development: i.e. deed restrictions, covenants and by-laws. You also need to check with the Indiana Secretary of States office to see if there is a corporation listed for the HOA.