Changing CC&Rs
We are interested in changing or annulling CC&Rs that were originally recorded in September 1996 for which an HOA was never established and bylaws never created. They stipulate an original 20-year term that was then renewed via sequential 10-year terms. So, presumably, they are still in effect? However, most of the 23 voting members do even realize there are CC&Rs. They also stipulate that 2/3rds of the vote is required for amendments. My questions are (1) are these still in effect, (2) does AZ law provide the ability to petition the court to reduce the required vote to a simple majority, and (3) what advice do you have as we pursue our goal?
Thank you,
Win
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Winslow,
While I’ve answered all question thru the e-mail stream that you sent to me directly, I’ll repeat that answer for the benefit of any member reading this question. Whether or not homeowners know that CC&R’s exist or not is totally irrelevant. If they are recorded they exist and all property in that community is subject to the conditions and restrictions of that recorded document. Renewal of existing CC&R’s is typically automatic and needs no action by the community or the board, but you would want to see the specific language of your particular documents.
Arizona law provides no vehicle for the courts to reduce the approval requirements for changes to the declaration. The approval requirements specified in the declaration is required.
What was not included in this question but relevant to the case is that while the CC&R’s were recorded and required that a non-profit corporation be created to run the community and enforce the CC&R’s, the declarant never created that association and for over 16 year the association never existed. Technically any home in the community could not be bought or sold with recorded deed restrictions that were not implementable. This put the community in grave danger and my advice for this community was to hire an attorney and create an association to comply with the CC&R’s. While this will do nothing to change the CC&R’s it will at least allow the association to function and free the homeowners to sell property legally.
Dennis