Please register to participate in our discussions with 2 million other members - it's free and quick! Some forums can only be seen by registered members. After you create your account, you'll be able to customize options and access all our 15,000 new posts/day with fewer ads.
Sorry no cigar for you. The rest of that sentence says..... unless the articles of incorporation or the declaration expressly provides to the contrary, and and do not invalidate existing provisions of the declaration, bylaws, or plats and plans of those planned communities. (referring to communities before 1999)
Sorry, I was resting a steak and it already was too done by the time I got back to it.
In that case (Wise v. Harrington Grove Community Association, Inc., 357 N.C. 396, 584 S.E.2d 731 (2003), which is what I was quoting 47F stated at the time:
The North Carolina Planned Community Act (the Act) states, in relevant part:
(c) Notwithstanding the provisions of subsection (a) of this section, G.S. 47F-3-102(1) through (6) and (11) through (17)(Powers of owners' association) . . . apply to all planned communities created in this State before January 1, 1999, unless the articles of incorporation or the declaration expressly provides to the contrary
Now fast foward to 2008: Riverpointe Homeowners Ass'n v. Mallory, which is a local Mecklenburg case that made it to the NC Court of Appeals.
The short way I read that is that you cannot apply the statute to an older neighborhood unless that neighborhood amends their declarations.
Indeed it was. The rights to one's property is a US constitutional protection. The courts, including the Supreme Court, have ruled numerous times that if a state passes a law that removes people's existing rights to their property, then the state must fairly compensate them for this loss. This is why they didn't force 47 F on existing communities unless that community agreed to it and even then there are restrictions. An easement is a property right. It would be a transfer of rights and it could be argued the state would then be liable for the loss. The state can regulate how new HOAs are formed, which they did with 47 F, as long as this is what the property developer wants to do. For the same reason I listed above, the state can't force all new property sales to be in an HOA without getting into tricky constitutional law.
Indeed it was. The rights to one's property is a US constitutional protection. The courts, including the Supreme Court, have ruled numerous times that if a state passes a law that removes people's existing rights to their property, then the state must fairly compensate them for this loss. This is why they didn't force 47 F on existing communities unless that community agreed to it and even then there are restrictions. An easement is a property right. It would be a transfer of rights and it could be argued the state would then be liable for the loss. The state can regulate how new HOAs are formed, which they did with 47 F, as long as this is what the property developer wants to do. For the same reason I listed above, the state can't force all new property sales to be in an HOA without getting into tricky constitutional law.
Well I'm trying to focus on the part that allows them to fine you even though it isn't in the CCR. They can't force everyone new into one but they HAVE changed the law to allow fines from permissive (change the rules) to "if it's not mentioned" in other words, the law now says that if the CCRs don't say they can't fine they CAN fine unless the CCRs say they can't EVEN WITHOUT amendment.
That's the trouble I have with the law and if I had the time and money I'd move it the federal courts to press the point.
The point remains that a pre-1999 HOA CAN fine UNLESS the CCRs say they can't. This is bad. This is evil and I don't believe it to be constitutional. What's the point of having the rules run with the deed if the industry is allowed to change the rules later without a vote?
....What's the point of having the rules run with the deed if the industry is allowed to change the rules later without a vote?
The rules are not in the deed. The deed will have an easement where you grant the right to an HOA to certain controls over your property. (and remedies if you don't comply) It's up to you, to obtain a copy of the HOA's CCRs to determine exactly what they have been granted to do. After 1999, they have to follow 47F. Prior to that, you really need to read up on what they have been allowed to do and how they can change it.
The rules are not in the deed. The deed will have an easement where you grant the right to an HOA to certain controls over your property. (and remedies if you don't comply) It's up to you, to obtain a copy of the HOA's CCRs to determine exactly what they have been granted to do. After 1999, they have to follow 47F. Prior to that, you really need to read up on what they have been allowed to do and how they can change it.
No, I'm talking about pre-1999 HOAs after the 2004 change in 47F allowing them to fine/lien/foreclose if not specified otherwise in the CCRs. In other words adding by statute where they couldn't muster the votes.
You can be fined via 47F in a pre 1999 HOA where nothing is mentioned about fines in the CCRs. Neat.
CouponJack is a bit hypocritical to say the least.
Apparently it is wrong to paint with a broad brush if their is a negative comment about HOAs but okay to make unsubstantiated positive claims about HOAs? Most people in fact want nothing to do with the HOA corporation burdening the property.
The comments that CouponJack made are typical trite claims made in an effort to rationalize the ubiquitous bad acts of HOA boards and their agents. The propaganda typically attempts to blame the owner or claim that the bad conduct by the HOA board and agents are "isolated instances". In fact, they are prevalent and pervasive.
The only people that claim otherwise are real estate agents trying to sell HOA-burdened property and the Community Associations Institute - an HOA industry trade group whose most active members are HOA management companies and HOA attorneys.
You can read more about the HOA industry here: theHOAprimer
I am in no way hypocritical. Again its very simple. I'm Sorry you can't accept the fact that the overwhelming majority of people who CHOOSE to live in HOA's are very satisfied.
I am in no way hypocritical. Again its very simple. I'm Sorry you can't accept the fact that the overwhelming majority of people who CHOOSE to live in HOA's are very satisfied.
CouponJack, we see how much you love HOA's!! But it sounds like you are only referring to sensible upfront HOA's in large neighborhoods with amenities, etc to worry about. I have NONE of those. I have a group of folks that want to dictate what you do with your property that is not in the CC&R and NO HOA listed in CC&R are to work from, No ASSESSMENTS listed so how do you fine, and put liens on folks with NO ASSESSMENTS?? By inventing your own!! And that has been the case here. RIGHTS have turned into OBLIGATIONS..
So we don't have the fun of having a GREAT HOA here. Your comments are not helpful but hurtful!
CouponJack, we see how much you love HOA's!! But it sounds like you are only referring to sensible upfront HOA's in large neighborhoods with amenities, etc to worry about. I have NONE of those. I have a group of folks that want to dictate what you do with your property that is not in the CC&R and NO HOA listed in CC&R are to work from, No ASSESSMENTS listed so how do you fine, and put liens on folks with NO ASSESSMENTS?? By inventing your own!! And that has been the case here. RIGHTS have turned into OBLIGATIONS..
So we don't have the fun of having a GREAT HOA here. Your comments are not helpful but hurtful!
Get a grip
We are all sorry for the difficulties you are having with a handful of people in your neighborhood. That sucks, it really does.
But Jack is 1000% right and nothing he has said is "hurtful".
He makes excellent points that the vast majority of people in HOA's are very happy with the way theirs is run. I am in my 4th neighborhood in 25 years with an HOA and I would never live in a neighborhood without one.
You are in a very unusual situation and I hope it gets remedied legally for you, but in no way is your experience the norm like you keep implying.
Sorry, I was resting a steak and it already was too done by the time I got back to it.
In that case (Wise v. Harrington Grove Community Association, Inc., 357 N.C. 396, 584 S.E.2d 731 (2003), which is what I was quoting 47F stated at the time:
The North Carolina Planned Community Act (the Act) states, in relevant part:
(c) Notwithstanding the provisions of subsection (a) of this section, G.S. 47F-3-102(1) through (6) and (11) through (17)(Powers of owners' association) . . . apply to all planned communities created in this State before January 1, 1999, unless the articles of incorporation or the declaration expressly provides to the contrary
Now fast foward to 2008: Riverpointe Homeowners Ass'n v. Mallory, which is a local Mecklenburg case that made it to the NC Court of Appeals.
The short way I read that is that you cannot apply the statute to an older neighborhood unless that neighborhood amends their declarations.
I think that's your point.
This is interesting..in our CC&R the amendment part says "at LEAST a majority of homeowners AND the DEVELOPER can amend". What the lawyers have been saying is "you can't amend now that the Developer is not present" but these folks think they can amend without the Developer.
What say you??
Please register to post and access all features of our very popular forum. It is free and quick. Over $68,000 in prizes has already been given out to active posters on our forum. Additional giveaways are planned.
Detailed information about all U.S. cities, counties, and zip codes on our site: City-data.com.
Please register to participate in our discussions with 2 million other members - it's free and quick! Some forums can only be seen by registered members. After you create your account, you'll be able to customize options and access all our 15,000 new posts/day with fewer ads.
