HOA both voluntary and mandatory?

Started by TishS • 10 replies • 1631 views

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TishS (Washington)
Posts: 11

Posted:

My HOA was formed in 1971 and filed CCR's on my deed. In 1976 a piece of property was deeded to the association. At some point in time, the association board (all related family members) had other properties near the division that they wanted to add to the HOA, so they began selling these properties with beach rights (from the HOA) In 2004 they held a meeting and changed the bylaws to change who was a member and added over 100 properties to the original 29. They never changed the CCR's or filed CCR's against all these new properties. Well not everyone wanted their properties added or had any idea it happened, so they now are saying the original 29 properties are mandatory members and the added lots are voluntary members (bylaws and CCR's have no mention of voluntary members)
I have filed a quite title action trying to figure out who is actually a member (how many people vote on what I do on my property) The HOA now is saying it is not a HOA and has nothing to do with my CCR's that it is a non profit community club...I have never heard anything like this before.

The HOA says they will not enforce my CCRs or file liens or assessments on my property, but deny me the use of the beach if I dont pay. My deed does say I have a membership in the association along with the CCR's. The CCR's say the HOA was formed to enforce the CCRs of the division.

Has anyone ever heard of this happening to anyone else? Is there arguement at all reasonable? Every written document refers to filing liens, assessments, and running with the land memberships.

The original 29 property owners are outnumbered and have been threatened with being locked out of the beach or kicked out of the community club if they make any waves.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

Posted By TishS on 08/01/2010 9:48 PM
My HOA was formed in 1971 and filed CCR's on my deed. In 1976 a piece of property was deeded to the association. At some point in time, the association board (all related family members) had other properties near the division that they wanted to add to the HOA, so they began selling these properties with beach rights (from the HOA) In 2004 they held a meeting and changed the bylaws to change who was a member and added over 100 properties to the original 29. They never changed the CCR's or filed CCR's against all these new properties. Well not everyone wanted their properties added or had any idea it happened, so they now are saying the original 29 properties are mandatory members and the added lots are voluntary members (bylaws and CCR's have no mention of voluntary members)
I have filed a quite title action trying to figure out who is actually a member (how many people vote on what I do on my property) The HOA now is saying it is not a HOA and has nothing to do with my CCR's that it is a non profit community club...I have never heard anything like this before.

The HOA says they will not enforce my CCRs or file liens or assessments on my property, but deny me the use of the beach if I dont pay. My deed does say I have a membership in the association along with the CCR's. The CCR's say the HOA was formed to enforce the CCRs of the division.

Has anyone ever heard of this happening to anyone else? Is there arguement at all reasonable? Every written document refers to filing liens, assessments, and running with the land memberships.

The original 29 property owners are outnumbered and have been threatened with being locked out of the beach or kicked out of the community club if they make any waves.

Well the status of the community club, HOA, non profit or whatever they are calling it depends on what they own. Does the HOA they own the property that provides access the beach?

Lets say they are an HOA, and the common area is the beach access, and there were 29 deeded members. Yes, the rest of the members can be voluntary, yes its common. If any member does not pay, its likely they can deny beach access to all, but only lien/legal action on the original 29 members. The voluntary members would just loose access.

Or if the 29 original members are actually voluntary, they can just kick you out too.

I'm just guessing, it really depends on what the docs say.

Whats the problem? You dont want beach access? Just trying to clear the title? Etc?

MaryA1 (Arizona)
Posts: 7,043

Posted:

Tish,

Just because there are CCRs that "run with the land" does not mean there is an HOA to enforce the covenants. It all depends upon what is stated in those CCRs. Also, the CCRs should state what the procedure is for adding properties and, IMO, any added properties would have to abide by the CCRs as written. The mistake that was made was in amending the bylaws and not the CCRs. IMO, if the CCRs were never amended to include the additional properties then they are NOT a part of the HOA. Also if the CCRs have no provision for mandatory and voluntary members then you cannot have both. The "added 100 lots" can be an entity in itself -- a nonprofit community club; however that entity would have nothing to do with the HOA consisting of the original 29 lots and those lots would not be a part of the original HOA. IMO, the amendment to the bylaws should be null and void. Sounds to me like the BOD is making up rules as they go along. I think it would be wise to consult an attorney for guidance and a determination if the BOD is violating the CCRs. Do the property owners of the remaining 28 lots of the original HOA feel the same way as you do?

TishS (Washington)
Posts: 11

Posted:

The issue I have is that the bylaws say there are 97 members, the insurance policy says 48 members, the CCR's say 29 members, and the board has given me at least six different counts in the last year. The "organization" (I dont know what is really is anymore) had a vote on an assessment for a large improvement to the beach property, we have no firm number as to the amount, because we have no idea how many members there are. The only thing we do know is that 29 of the lots are mandatory (They have CCR's..with no mention of these other lots). The "organization" has stated it is optional for the voluntary members to pay, so the fewer voluntary members that pay the larger the assessment is for the mandatory members. However, you can become a voluntary member at anytime (there is absolutely nothing in writing about these voluntary members)

All documents no matter what he count of members say mandatory on them.

The beach belongs to the association (which according to the CCR's) was formed to enforce the CCR's of the original 29 lots.

The reason I am concerned is
#1 Is my CCR's are attached to my deed, they do not match the Bylaws or what is actually happening with the "organization"
#2 When I sell my property I dont know what or how to disclose any of this.

#3 The voluntary members are the majority and they have the controlling votes over my CCR's but they are not actually effected by the CCR's.
#4 They have stated they can vote anyone out of the group as easily as they put them in, so the original 29 are afraid they can have their beach access taken away if they say anything. The value of our properties depend on the beach access and to say it is not a permanent fixture to our property is very scary

JohnB26 (South Carolina)
Posts: 1,569

Posted:

ATTORNEY ...

DOH

MaryA1 (Arizona)
Posts: 7,043

Posted:

Tish,

One thing you have to understand is that the CCRs "run with the land", meaning they pass on to any successor owners. It doesn't matter whether there is an HOA or not, the CCRs stay with the property.

It's apparent the BOD does not know what they are doing and no one on the BOD may even understand how HOAs operate and the importance of adhering to the CCRs. You would think that if anyone would know how many members there are in the HOA the board members would. But that apparently is not the case. IMO, your HOA is in a sorry state! If it were me, I would get together with the other 28 property owners and suggest taking up a collection to speak to an attorney.

BTW, if the CCRs state the members are to have access to the beach then the current BOD CANNOT just arbitrarily take away that right from any member -- member meaning the owners of the original 29 lots. Because the CCRs were never amended to add any additinal lots I don't believe the owners of those lots can be members of the HOA.

One other problem I just thought of. If any of the board members are not property owners of the original 29 lots they may not even be eligible to be a board members. Do your bylaws say a board member must be a member of the HOA? IMO, the "voluntary" members may not really be members of the HOA if the CCRs do not state membership is voluntary.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

For only $9 a month you can join our HOA and have access to the beach! Join today!

LOL.

TishS (Washington)
Posts: 11

Posted:

Funny you should mention the 9.00 you see launching a boat at the public boat launch costs 20.00 a time. Join our HOA and launch as many times as you want for 50.00 a year! Gee and their is a brand new boat launch that was expanded to handle some very large boats. I know because I am paying for it and all these people line up in front of my property for a turn to launch. I just hope no one gets hurt down there or I will probably wind up paying for that also, something tells me that if there is a liability lawsuit the number of volunteer members will drastically decrease.

The board has 6 members, only one is from the original 29 lots. So needless to say talking to the board has gotten me nowhere.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

The board has 6 members, only one is from the original 29 lots. So needless to say talking to the board has gotten me nowhere.

A real estate lawyer will charge by the hour, so do as much legwork as you can first. Find the CCR's and see if it states the board members or officers need to be owners (original 29). Get copies of all the new bylaws, etc filed with the new group that took over. Check new homeowners deeds online or at the registry to see if access is on the deeds.

What might end up happening is.... you vote in a whole new board only consisting of the original 29. Then you start running it the way you want.

SusanW1 (Michigan)
Posts: 5,202

Posted:

So . . how did your board get authorization to operate as a MARINA?

That whole set up of payment for boat launching would never fly around here. It's called key-holing.

TishS (Washington)
Posts: 11

Posted:

I will look into the whole key holing thing. I am sure that aspect has never been investigated. I have kind of thought they were looking at adding more members than they have already added and that is why we now have this massive boat launch and there is a brand new development being built with an airstrip, but no boat launch (there is a moratorium on them and you cant build any more)

I think I have very good records and have collected every deed for the properties involved, CCR's, Bylaws, and Articles of Incorporation, but I was thrown by the recent information the HOA provided me by saying they are not an HOA but a community club. When did that happen?

Gee I wish my only problem was dog poop and parking infractions like some people have with their HOA's

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