Expiration of CC and R’s
Our HOA is wanting to update its CC and R’s. In that document under the following #17 listed below states that owners of the majority of the lots can declare not to extend or renew the current CC and R’s. The Board is wanting to use that as a way to extinguish the current document and update and rewrite them without any additional approval from the association.
In 1980 the CC and R’s were amended to require 75% approval for any future amendments to the document. The Board claims by getting 50% of homeowners to agree to not extend the current CC and R’s this would circumvent the 75% approval for amending the CC and R’s.
The board has not reviewed any of the with an attorney before putting this in motion which to me seems premature. Any information on this would be very helpful
Thank you Sharon
#17. The restrictive covenants, conditions, limitations and agreements herein contained shall run with and bind the land for a term of twenty-five (25) years from the date this declaration is recorded, after which time they shall be automatically extended for successive periods of ten (10) years (unless at the time of expiration of these covenants, conditions, limitations and agreements, the owners of the majority of the lots located in said subdivision shall by a written instrument declare that same shall not be renewed or extended) and shall be binding upon all persons purchasing, leasing, subleasing or occupying any unit or units in the above described premises after the date upon which this instrument has been recorded for the benefit of the property described herein. The covenants, restrictions and reservations herein contained may be enforced by the Board of Directors of DORADO COUNTRY CLUB ESTATES ASSOCIATION for Blocks 9 & 10, a non-profit corporation described herein by the undersigned or by anyone or more of said individuals and/or corporations; provided, however, that the violation or breach of any covenant, restriction, reservation and/or condition or any right of re-entry by reason thereof shall not defeat nor render invalid the lien of any mortgage or deed of trust made in good faith and for value upon said unit or units and except as herein provided, each and all of said covenants, restrictions, reservations and conditions shall be binding upon and effective against any owner of said premises who’s title thereto is acquired by foreclosure, trustees sale or otherwise and provided also, that the breach of any said covenants, restrictions, reservations and conditions may be enjoined, abated or remedied by appropriate legal proceedings notwithstanding the existence of any lien, deed of trust or mortgage instrument. Any and all instruments or covenants of any interest in all or part of the units constructed upon the land described herein, shall contain reference to this instrument and shall be subject to the covenants, restrictions, reservations and conditions herein set forth as fully as though said terms and conditions of this instrument were therein set forth in full; provide, however, that the restrictive covenants, terms and condition of this instrument shall be binding upon all persons affected by the same.
#18. The foregoing declaration of covenants, conditions, and restrictions may be amended at any time and from time to time by an instrument in writing signed by the owners of Seventy-Five percent (75%) or more, of Blocks 9 and 10 of Dorado Country Club Estates, and said amendment shall become effective upon the recording of said instrument in the Office of the Pima County Recorder.
Dated this 6th of February, 1980
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Sharon
Your board is incorrect in their assumption. While I suspect that there is a specific provision in your CC&R relative to termination of the Covenants that would require a minimum of 80% of the owners to agree, The approach your board is attempting is totally inappropriate, and would be a very bad thing for your community. the board has absolutely no authority to amend or terminate the CC&R’s unilaterally under Arizona Law. Any change to the CC&R’s would require the affirmative vote of at least 75% of the owners. They changed that, and now they have to live with that. There was a bill introduced in the legislature that as amended would have overruled any provision in CC&R’s relative to amendment authority to allow a three-tiered approach to any amendment to the CC&R’s. a maximum of 67% of the owners for most issues and only a simple majority for some things and unanimous consent for a few very specific types of changes. Unfortunately, that bill died in committee this past week.
I’ll attempt to get legislation next session to address this issue but there are never any guarantees with legislation.
Dennis
Sharon,
Another thought. What was the approval requirement for amendments prior to that last change that moved it to 75%? I suspect that it was a simple majority to be consistent with the renewal provision, and this section was overlooked in the previous change. If the association cancels the covenants the association no longer exist and has no authority over the community. The homeowners would be left to create a new covenant for the community. Until that happens no bills can be paid, and no money can be collected, the covenants no longer exist and so there are no limits as to what anyone can do with their property. The creation of the new covenant would require 100% of all owners to be invoked. Because the original covenants were created and established before anyone bought any property, the act of buying that property constituted agreement to comply with the covenants. Most people don’t realize that but that is the fact. To impose new covenants on existing homes would require 100% of all owners to agree to those restrictions on the use of their private land or property.
Dennis
Thank you Dennis for your quick response. Prior to the 1980 amendment the CC and R’s stated the Board of Directors could amend the Covenants without any homeowner approval. Am I wrong to assume Arizona HOA law can invalidate portions of the CC and R’s if laws have been created after the CC and R’s were written?
Arizona laws are written using two formats. The first used the term “notwithstanding any provision in the declaration” which means that Arizona Law supersedes the declaration, or “unless otherwise specified in the declaration” which means the declaration supersedes the law. Arizona law prevents the association board from amending the CC&R’s without the approval of at least 67% or any higher number specified in the declaration.
Yes, Arizona law can and does invalidate many provisions in CC&R’s even though those CC&R’s were written first.
Dennis