Declarant Control-not abiding by governing docs

Started by JoanR • 12 replies • 1934 views

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JoanR (North Carolina)
Posts: 24

Posted:

Are there any states where some area of civil government ensures the Declarant abides by the governing documents when the HOA is under Declarant control and an offense is reported? I am preparing for a meeting with my House Representative and want to be as well prepared as possible to discuss the feasibility of a bill.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Joan,

IMO, the biggest problem in most states is that there is not a gov't agency to oversee HOA and adjudicate HOA problems. If you can convince your State Rep to sponsor a bill that would do this it would be great! We were successful in doing this in AZ a number of years ago then after only 1 year of operation the use of the designated agency was found to be unconstitutional (AZ constitutional) so we're back to square one!

Many covenants have built-in protections for the declarant. But, if he is not abiding by the covenants and/or state law, IMO, he should be held accountable as any board member would be who is serving after declarant control.

RuthaC (West Virginia)
Posts: 9

Posted:

We have already had a 2/3 vote to re-word the CCR and the changes made were just clarifications that some residents wanted. We did not vote on the rewording of the first page which has the declarant as Charleston Housing which was in charge of the construction. Our HOA has been established since 1986 and is run by a volunteer board of owners. Should we type up the history of the declarant being Charleston Housing and then the new declarant as all the owners of the HOA? Also can we record the by laws with the covenants so that new buyers will receive a copy of both at closing?

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By RuthaC on 08/06/2010 2:05 PM
We have already had a 2/3 vote to re-word the CCR and the changes made were just clarifications that some residents wanted. We did not vote on the rewording of the first page which has the declarant as Charleston Housing which was in charge of the construction. Our HOA has been established since 1986 and is run by a volunteer board of owners. Should we type up the history of the declarant being Charleston Housing and then the new declarant as all the owners of the HOA? Also can we record the by laws with the covenants so that new buyers will receive a copy of both at closing?

Because you voted on the most difficult document, that being the CCR's, the Bylaws should have been done at the same time, with both documbers eliminating all mention to the former Declarant. There is no need for a new Declaration as the Association, made up of individuals and governed by a Board of Director is now in control.

RuthaC (West Virginia)
Posts: 9

Posted:

We had no need to revise the By-laws. You say there is no need for a new declaration as the association... What would be in the first paragraph to show the covenants were revised as of August 2010? And would you leave the history of the previous declarant ...in other words. How do we show these covenants were revised? Again can we record the By-laws at the same time we record the Covenants? Thanks rc

RuthaC (West Virginia)
Posts: 9

Posted:

Our By-Laws which show no declarant reads that it is a nonprofit corporation organized to enforce the Declaration of Covenants, conditions, reservations and etc. Article 1 says The Board of Directors shall be enpowered to designate a registered office in accordance with West Virginia law.

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By RuthaC on 08/06/2010 6:12 PM
Our By-Laws which show no declarant reads that it is a nonprofit corporation organized to enforce the Declaration of Covenants, conditions, reservations and etc. Article 1 says The Board of Directors shall be enpowered to designate a registered office in accordance with West Virginia law.

I can only speak to our Bylaws which are not that unsimilar to others. We have reference to Declarant as it pertains to Membership and Voting Rights, Membership Assessments and Lien Rights, Meeting of Members, Management of the Common Area, Right to Contract, and Amendment.

SusanW1 (Michigan)
Posts: 5,202

Posted:

There is no such thing as "past bylaws" - there are only the current ones.

No need to state anything about any past documents. The effective date of the new documents now become the only documents.

Fresh deck, new deal.

RuthaC (West Virginia)
Posts: 9

Posted:

Check with the post on 8-6. We are discussing Covenants that have changed.

JoanR (North Carolina)
Posts: 24

Posted:

I'm confused, I posted on 7/28 regarding a declarant not following governing docs, received one reply and now there is a totally new discussion on this thread and I'm not receiving feedback on my question?

MaryA1 (Arizona)
Posts: 7,043

Posted:

Joan,

Sorry! It appears your thread has been "high-jacked", a quite common occurence on messageboards. I hope my response what helpful to you!

JohnB26 (South Carolina)
Posts: 1,569

Posted:

Quote:

Posted By JoanR on 07/28/2010 9:34 AM
Are there any states where some area of civil government ensures the Declarant abides by the governing documents when the HOA is under Declarant control and an offense is reported? I am preparing for a meeting with my House Representative and want to be as well prepared as possible to discuss the feasibility of a bill.

the direct answer to your question as phrased is:

however, there are courts of law where orders can be obtained from judges

RuthaC (West Virginia)
Posts: 9

Posted:

Sorry for posting on this subject. I am new, but now realize I should have gone to "Discussion Topics" instead of the screen that popped up.

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