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Author Topic: Homeowner Restrictions, can they exist?  (Read 37949 times)
W0MT
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Posts: 172




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« Reply #15 on: February 21, 2014, 10:31:42 AM »

I would ask the HOA for the rules book. I do not know why many of you go to the gov't (feds or local), to inquire about the HOA's restrictions. They are separate. PRB-1 is specific to gov't trying to regulate antennas. It has nothing to do with private entities.
The reason to go to the local government is simple. Generally CC&Rs are deed restrictions. If they are not recorded in the land records for real property, they have no effect. I don't know where you would look at deeds and deed restrictions but most of us would go to the local county government and look through the land records.

I once had an HOA tell me what they could do and when I got a copy of the CC&Rs, the HOA was dead wrong. If you want to trust the HOA to tell you what you can and cannot do, be my guest. Many HOAs have rules and these should be obtained but you should make sure the recorded CC&Rs allow them to enforce separate rules.

There are a few cases where CC&Rs have not been filed in the land records and they were enforced but those are extremely rare.
« Last Edit: February 21, 2014, 10:46:08 AM by W0MT » Logged
W8MW
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Posts: 325




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« Reply #16 on: February 21, 2014, 01:06:10 PM »

Maybe your experience with real estate agents is different from mine and perhaps some agents view their job this way but not in my experience. [/quote]

Your point is a valid one.  In my case I purchased two homes in Ohio within the past 7 years, each involving HOA's.  The agents in both cases obtained the HOA documents for my evaluation prior to offers made on the properties.   The best advice is as you said, hire a real estate attorney if there's any doubt.

73 Mike W8MW
« Last Edit: February 21, 2014, 01:09:42 PM by W8MW » Logged
K2GWK
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Posts: 415


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« Reply #17 on: February 21, 2014, 03:09:59 PM »

Engage a real estate attorney that can dig and find out for you whether any additional restrictions can be added, whether the HOA is active (when their last meeting was) and find any hidden (innocuous or fallen by the wayside) CC&Rs that may still be on the books.  The records of findings from an attorney may well give you a tool to fight with if there are any future problems with your neighbors. 

If you want to chance it, visit your future neighbors and explain about your hobby, what you may plan to install and find out if there is any objections from them.  It may well show you that the house you're considering isn't that attractive after all. 

In 2001 then Governor George Pataki signed into law the Property Condition Disclosure Act, 2001 N.Y. Laws 5339-A. The Property Condition Disclosure Act (the “PCDA”), will require sellers of residential real property (excluding condominiums and cooperatives) containing up to 4 dwelling units to provide a disclosure statement. The disclosure statement consists of 48 questions to be answered by the seller based on the seller’s actual knowledge, and covers a variety of subjects ranging from general information about the ownership and occupancy of the property, to structural, mechanical and environmental issues as well as statutory disclosure requirements such as federal lead-based paint and state agricultural matters. This includes the knowledge of any CC&R's. The seller does not have to provide the details of the CC&R to the buyers but does have to disclose that CC&R's on the property exist.
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WA8FOZ
Member

Posts: 188




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« Reply #18 on: March 26, 2014, 08:37:59 PM »

Before you commit to buying a property, consult a REAL ESTATE attorney. A realtor is not an attorney, nor is a neighbor nor a ham on the next block. If you care at all about ham radio and care at all about your money, consultant a REAL ESTATE attorney. Not just any attorney, a REAL ESTATE attorney. OK?

Good luck and have fun - a new QTH can be an exciting time.

73,
Bill WA8FOZ
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WA8JNM
Member

Posts: 170




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« Reply #19 on: March 27, 2014, 05:32:35 PM »

I think I have learned in this thread that the recorded deed covenants and restrictions must in some fashion allow for the existence of the creation of later unrecorded HOA rules.  If so, without some some enabling language in the recorded deed covenants and restrictions, the HOA would have no rule making authority. Right?  And, therefore, any rules the HOA did create would be unenforceable. If that is correct, it would be wise for any of us currently living under restrictions and rules of an HOA to be sure the HOA was PERMITTED in the first place to create ANY rules under the terms of the recorded deed covenants and restrictions.  Agree?

So, it seems that one looking to buy in an HOA regulated community would, in this order:

1.  Read the recorded deed covenants and restrictions, looking first for specific ham radio/antenna related limitations, AND, secondly, to be sure there exists enabling language therein for an HOA later to create (unrecorded) rules, then,

2. If rules are indeed permitted to be created by an HOA (as I assume would commonly be the case, absent a drafting over site by the attorney who wrote them), obtain these UNRECORDED documents and read them.

Yes?

Dave
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W0DLM
Member

Posts: 75




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« Reply #20 on: April 03, 2014, 07:13:03 AM »

"...without some some enabling language in the recorded deed covenants and restrictions, the HOA would have no rule making authority. Right?"

No, that's not right.  Not necessarily.  It depends entirely on the state and local laws in the area you are looking.

In MOST areas you would be correct; local laws would require some sort of enabling language before a non-voluntary HOA could be formed.  That is not true in ALL areas, though.  Some states do allow non-voluntary HOAs to be created after the fact.  You need to check into the laws and court cases in your specific area to know for sure.
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KC2UGV
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Posts: 421




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« Reply #21 on: May 08, 2014, 04:07:26 PM »

The only one who can answer this question with any degree of accuracy is your real estate attorney.
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WA8JNM
Member

Posts: 170




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« Reply #22 on: May 09, 2014, 03:39:15 PM »

I checked with a real estate lawyer today. My comments above are correct, at least in Ohio, and probably in most states. He did say, however, that it would be unusual if the recorded declarations omitted and forgot to include language which enabled an HOA to create rules and regs.

Dave
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KC2UGV
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Posts: 421




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« Reply #23 on: May 09, 2014, 05:16:42 PM »

I checked with a real estate lawyer today. My comments above are correct, at least in Ohio, and probably in most states. He did say, however, that it would be unusual if the recorded declarations omitted and forgot to include language which enabled an HOA to create rules and regs.

Dave

Your lawyer's assessment is accurate for the counties in OH he practices in.  Real estate laws vary from county to county, sometimes widely.
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WA8JNM
Member

Posts: 170




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« Reply #24 on: May 09, 2014, 06:51:56 PM »

Not really.  It is governed by state statute, not county ordinances.
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KC2UGV
Member

Posts: 421




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« Reply #25 on: May 10, 2014, 10:36:57 AM »

Not really.  It is governed by state statute, not county ordinances.

Ok.
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W6OGC
Member

Posts: 10




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« Reply #26 on: May 11, 2014, 08:19:01 AM »

Generally, the CC&Rs must be recorded in the chain of title to be enforceable against remote owners, i.e. those who buy from subsequent owners not the developer.  The title insurance policy should list any CC&Rs as exceptions to coverage, along with easements, liens etc.  The title company that was involved in your transaction ought to be glad to furnish copies of any such items.

The CC&Rs, probably imposed at the development stage before the initial sale to a private owner, bind all owners.  The rule making authority of the HOA usually does not extend to privately owned property but only to common areas, such as pools, clubhouses and similar amenities.  If you have exclusive use and ownership of your back yard, for example, and there are no restrictions on antennas expressed in the CC&Rs, it would take an amendment approved by some majority of the property owners to impose additional restrictions.

For future transactions, don't rely on real estate brokers to find out details of the property you are buying.  Read the title reports, conduct your own visual inspection.  Ask questions.  Deals come and go, mistakes are forever.  Some real estate brokers know what they are talking about and are energetic about ferreting out details.  Other, not so much.  You can't rely on which yours is.  There is some incentive to not find things that might rock the boat and blow the deal.  One of those things is suggesting you have a lawyer review your documents as the transaction progresses.  If you don't know what you are reading or understand these things, hire someone who does.

I didn't stay at a Holiday Inn last night or play a real estate lawyer on TV.  I was one for nearly 40 years in California.
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WA8JNM
Member

Posts: 170




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« Reply #27 on: May 12, 2014, 04:29:21 PM »

OGC,

Those are very helpful comments.

But, am I correct that the recorded CC&R's must expressly grant rule making authority to the HOA? And if the CC&R overlooked doing so, the HOA would have no rule making authority?

Granted this is a theoretical question, and maybe the CC&R's are never that careless, but I am curious.

Dave
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W4AJA
Member

Posts: 10




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« Reply #28 on: May 14, 2014, 03:10:41 AM »

In North Carolina you'd be correct Dave.  The county-filed documents must refer to an external "rules and regulations" document and process in order for those rules and regulations to be valid. This information was obtained from a HOA board training session sponsored by our HOA management company. It was thick with lawyers.  I'm a HOA board member and regularly struggle with a few other board members on this point. They have a rules and regulations document they continue to use as a stick with homeowners but it's not enforceable. Sadly in my case the antenna restrictions are in the county filed documents.
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WT3O
Member

Posts: 16




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« Reply #29 on: May 18, 2014, 05:42:06 PM »

Downsizing from a mcmansion to something smaller and more manageable.

Found a nice house, there is is homeowners association.

I went the the Ohio Secretary of State and searched on the name.  It returned a document, articles of incorporation.  In the incorporation it only refereed to restriction as stated in platbook x, pages 48, 49, 50, 51.

I then went to the Franklin country recorder and looked up the platbook entries.  Looking at these documents they had information on the lots, locations, and a lot of verbiage about drainage and easements.  Nothing about pink flamingos, junk cars, trailers, antennas...  They were put in place in 1997.

In the articles of incorporation it states that it maybe amended from time to time.  There are no other entries in the Ohio Secretary of State for this homeowners association.

1.  Is the logical conclusion that there are no antenna restrictions?
2.  If I put up a vertical in the backyard could someone in the homeowners association get ticked and have the articles of incorporation amended to exclude antennas, and could i be forced to remove anything that I have intalled?

It does not appear the the association is active based on information from people who live there.

73,

Carl - W9PMZ

Articles of Incorporation are the formal documents for creating legal entities. This document spells out the internal workings of the corporation. Corporations (and LLCs, partnerships, etc...) are not "people" in the sense that they are living and breathing, but the law can treat a corporation as a "person" - it can be sued, sue others, sign contracts, etc... To establish a corporation, you have to go through a process to essentially "give birth" to the corporation. These documents are primarily used to establish the legal entity and nothing else.

You need to go to your land records office (or "recorder of deeds" office) at the county courthouse and look through the deeds. Usually, a deed will reference the specific location of the CC&Rs (Covenants, Conditions and Restrictions), such as "book 490, folio/page 230." The CC&Rs are what limits amateur radio antennas and pink flamingos, not the Articles of Incorporation.

Feel free to e-mail me for more information.

IAAL.
« Last Edit: May 18, 2014, 05:46:36 PM by WT3O » Logged
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