HomeGuru,
thanks again for the insight!!!
We have actually spoken to an attorney and he told us we needed to make a revision to the current covenants. We do currently have articles of incorporation for the HOA and also signed HOA by-laws that state as one of the responsibilities of the BOD is:
To foreclose any unpaid dues or assessments, and liens resulting therefrom, against any property for which said dues or assessments are not paid within sixty (60) days after due date or to bring an action at law against the member personally obligated to pay the same;
**my response: here is what seems odd. THe HOA By-Laws give the BOD the responsibility to foreclose due to nonpayment of HOA dues, yet such dues are unenforceable? I would ask the attorney why give the power to the BOD when such collection cannot be enforced. In my opinion, the CC&R's were not written corectly and were incomplete. Is this attorney versed in real estate HOA laws?
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When we asked our attorney about this (this attorney happens to be the same attorney who helped the hoa become incorporated and create the hoa's bylaws 7 years ago -- this was before i lived in the neighborhood) -- he told us that the by-laws are not provided to a purchaser of a house either before or at closing and that because of this, we could not enforce the wording that is contained in our by-laws.
** My response: Why not? The full and complete recorded CC&R's should be given to a prospective Buyer to review
(some mortgage lenders review same as a condition for financing). And I am sure the Seller should give the document set to the Buyer as part of terms and conditions in the purchase contract and seller disclosure. In addition, as back up, it should be set policy that every new homeowner recieve these documents soon after closing. Lastly, if the CC&R's are recorded, the HOA has the protection of enforcement because any Buyer must automatically accept the CC&R's whether thay like it or not. In other words, even if the HOA did not give a new Buyer the By-Laws, said By-Laws should still be enforceable. Unless there was some omission or defect in the drafting of the documents by the attorney.
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He said if the same or similar wording was contained in our covenants -- we could then enforce the payment of the dues.
** my response: then the question you ask is, how did this happen as the HOA should be able to enforce any and all?
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So -- wouldn't this be the same for an approved decision that was an agenda item at one of our public HOA BOD meetings?
** my response: I cannot answer this without reviewing the legal documents. Ask the attorney.
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To give you a little info of our neighborhood -- we have 586 homes and our ANNUAL dues are only $42. Last year we had 527 households pay their dues leaving 59 who did not pay. We even sent 3 nicely worded reminder letters (which eats into our tiny budget). The reminder letters were actually sent to 200+ and we whittled them down to only the 59 who would not pay. We have 45+ households that are active on our numerous committees and advisory groups (this participation has increased to this level just over the past year and a half). We don't have a pool or clubhouse so the dues mainly pay for the landscaping of the entranceways, monthly newsletter distribution, web site, and a couple of adult and youth social events. Since the participation has so greatly increased -- is the reason for the questions pertaining to mandatory payment of dues. Volunteers want to do things, but we don't have the additional money to support all that they want to do. The 59 who didn't pay last year represents $2478. We hold family social events that cost less than $300 so that ends up being a lot that we have to do without... We thought that choosing to raise the dues because of nonpayment by some of the neighbors was a poor desision. We needed to address the problem directly and see what could be done...
thanks again!!!
