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  1. #1
    Join Date
    Apr 2010
    Posts
    10

    Default New HOA Forming on Basis of Exist. Covenants

    Hey all,
    I have a question regarding the formation of a new HOA based on existing covenants. This would be for a property located in the state of Alabama. To keep it brief i'll just hit the high points.

    Had a new home built in the neighborhood in 2006

    Roughly 6 months after closing I received a copy of the existing covenants that my developer admittedly had forgotten to include in our closing or negotiations. Not a big deal as they just contained some basic common sense guidelines that 99% of any property owners would follow regardless.

    December 2009 developer turns over rights to newly formed HOA. I'm asked, by the developer, to be a board member. I attend the first meeting to hear that dues are a very reasonable $75.00 a year. As the meeting progresses there is talk of some violations that exist dealing with storage sheds. The HOA president feels that written notice should correct the situation but if need be we (HOA) could just load the sheds up and remove them ourselves. At this point I excused myself and requested that my name be removed from the HOA board. For the record, i'm not in violation of any of the covenants, including the shed rule.

    When dues came due in 2010, I sent a letter along with my check for the dues. I stated that I had no problem donating my fair share but I wanted nothing to do with the HOA. My check was returned to me with a letter stating that all property owners had to join.

    After a few weeks passed I thought the issue was dead but today I received a certified letter stating that if I don't pay in 10 days my property will have a lien placed upon it.

    So, I guess i'm asking is this legit or what? Can I be forced to join a corporation that I want no part of and that I feel will land itself in court due to the actions it will proposedly take?

    Thanks,
    BRB

  2. #2
    Join Date
    Apr 2010
    Posts
    10

    Default Re: New HOA Forming on Basis of Exist. Covenants

    Update:

    When My check was returned, it included the reasoning that according to the articles of incorporation all property owners must join the HOA. They included the single page that does appear to have that requirement.

    Today I went to the courthouse and paid for a full copy of the articles of incorporation. These things were written in 2008 (2 years after I closed) and were not filed at the courthouse until Dec. 2009 (3 years after I closed). Would these documents even be enforceable to those who closed before they were written?

  3. #3
    Join Date
    Jun 2009
    Location
    California
    Posts
    666

    Default Re: New HOA Forming on Basis of Exist. Covenants

    Ok, I don't understand - maybe others don't either.

    You say you sent a check to pay your dues, they returned the check, someone on the HOA board returned the check. Then, they send you a certified letter demanding payment. Something is missing. What exactly are you refusing to do that caused them to return the check? Are there other fees or assessments that you are trying to avoid?

    As far as the enforceability of the documents is concerned, I'd recommend that you have an attorney review the articles as well as your purchase documents and title. It would seem that for an HOA to have authority, there would have to be some documentation preceeding the articles of incorporation giving it the authority to exist, unless there are clauses within the articles of incorporation that establish that. The existence of covenants alone would not do that. Perhaps when you purchased the property some document that you signed gave the developer the authority to enforce covenants and to pass that authority to other entities as the developer chose to do.

  4. #4
    Join Date
    Apr 2010
    Posts
    10

    Default Re: New HOA Forming on Basis of Exist. Covenants

    Thanks for the reply Scott and i'm sorry if I wasn't clear. I hand delivered my check to the HOA vice-president along with a letter stating that I did want to contribute towards the cost of maintaining the property but that I did not wish to join the HOA. Their reply was that joining the HOA wasn't optional and that my check was being returned to me because it was given with the stipulation that I wasn't joining the HOA.

  5. #5
    Join Date
    Jun 2009
    Location
    California
    Posts
    666

    Default Re: New HOA Forming on Basis of Exist. Covenants

    Then, I'd have to say I think you are being foolish. If the HOA has authority over your property, why would you not want to be a member so you can vote and attempt to protect your own interests? Maybe you can find something as I suggested in my previous post to challenge the authority of the HOA, but lacking that, it really makes no sense to pay the dues but refuse membership.

  6. #6
    Join Date
    Apr 2010
    Posts
    10

    Default Re: New HOA Forming on Basis of Exist. Covenants

    Quote Quoting Scott67
    View Post
    Then, I'd have to say I think you are being foolish. If the HOA has authority over your property, why would you not want to be a member so you can vote and attempt to protect your own interests? Maybe you can find something as I suggested in my previous post to challenge the authority of the HOA, but lacking that, it really makes no sense to pay the dues but refuse membership.
    I guess my thought process is this, I don't have an issue with the original covenants that existed when I closed. They are fair and even though i'm a little offended that my developer failed to point them out to me, I can certainly live by them. The HOA, on the other hand, can and will make up new rules and as a consenting member I have no choice but to abide. As a non-member bound only by what existed when I closed I will tell them to buzz off if and when they decide to reshape the neighborhood to their tastes. They don't, nor should they ever have, control over my property. Their duties, as spelled out in the covenants, is to maintain the common areas. I can appreciate your opinion and I do thank you for your input but, California and Alabama are different necks of the woods and HOAs down this way are generally little mafias made up of busybodies who have nothing better to do than get attention by trying to make life miserable for the masses.

  7. #7
    Join Date
    Apr 2010
    Posts
    10

    Default Re: New HOA Forming on Basis of Exist. Covenants

    Quote Quoting justtoonice
    View Post
    Just for reference, even though I'm in a neighboring state of Florida, you may want to peruse the judgement in this case, where the judge said the HOA could not be made mandatory after the fact, unless 100% of property owners agreed.
    Thank you for that justtoonice. Even though it was in FL, the circumstances are nearly identical so when I do contact an attorney at least I can reference this. Again, thanks.

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