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We have talked to the HOA and they are issuing the resale certificate with deficiences noted:
1*Plot does not follow the original landscape plan
2*rock wall needs rock re-setting (that means some rocks at the top are uneven, they are not set in mortar so we can easily move them to correct position, movers must have scattered them)
3*landscape edging is rusted, needs replacement or painting (we will spray paint)
Soooo.... now that we will make corrections on #2 & #3 and the resale certificate will still be issued with the 3 noted deficiencies. Do we notify the buyer's agent or just leave it alone because, the sale is an AS-IS sale and I don't want to stir the pot just 7 days before closing.
Las Colinas HOA resale certifs always have that second page that notes covenant deficiencies.
You will not get them removed unless you get them reinspected (they wont do this in time - they are too busy) and if, required, get the approval of the ACC, which won't meet before your closing and you are not even on their agenda yet. You will also have to pay and wait for a new resale certificate.
Frankly, the buyer has no idea of the extent to which you are noncompliant with the "landscape plan" thanks the the HOA's vague general reference in Item 1. That could be one minor item or many material noncompliance items. As an example, mine said the palm tree was missing, so it was easy to illustrate to the buyer that the deficiency was fixed, even if the HOA did not reinspect it.
Any buyer's agent worth his salt will get a copy of the resale certificate and review it.
Are you still in the option period of your contract?
If option period if over, I would do nothing. If you are still in option, you will need to get the buyer to agree that what you are doing as fixes are good enough to close.
Remember that the HOA cannot stop your closing, but the buyer can if still in the option period.
Las Colinas HOA resale certifs always have that second page that notes covenant deficiencies.
You will not get them removed unless you get them reinspected (they wont do this in time - they are too busy) and if, required, get the approval of the ACC, which won't meet before your closing and you are not even on their agenda yet. You will also have to pay and wait for a new resale certificate.
Frankly, the buyer has no idea of the extent to which you are noncompliant with the "landscape plan" thanks the the HOA's vague general reference in Item 1. That could be one minor item or many material noncompliance items. As an example, mine said the palm tree was missing, so it was easy to illustrate to the buyer that the deficiency was fixed, even if the HOA did not reinspect it.
Any buyer's agent worth his salt will get a copy of the resale certificate and review it.
Are you still in the option period of your contract?
If option period if over, I would do nothing. If you are still in option, you will need to get the buyer to agree that what you are doing as fixes are good enough to close.
Remember that the HOA cannot stop your closing, but the buyer can if still in the option period.
We are out of the option period. We have been sent a copy of the landscape plan from 1981 and when my husband bought the house in 1998 much of the original plan was not true to the design we just received. He has plenty of photos to prove it. And the Magnolia tree we thought we'd have to replace isn't even on the 1981 plan! And he did not get a resale cert when he bought the house showing deficiencies! I guess we will work thru all this but we certainly are not planning to reinstate the grounds to a design about 35 years old or remove flower beds under trees with ground covering because grass won't thrive in theses places.
We are out of the option period. We have been sent a copy of the landscape plan from 1981 and when my husband bought the house in 1998 much of the original plan was not true to the design we just received. He has plenty of photos to prove it. And the Magnolia tree we thought we'd have to replace isn't even on the 1981 plan! And he did not get a resale cert when he bought the house showing deficiencies! I guess we will work thru all this but we certainly are not planning to reinstate the grounds to a design about 35 years old or remove flower beds under trees with ground covering because grass won't thrive in theses places.
There is a 4 year statute of limitations on enforcing deed restrictions.
If "maintaining the original plan" was actually required by the restrictive covenants, the HOA corporation lost the ability to enforce any such restriction once 4 years passed.
Although it seems you have obtained a resale certificate, you have the ability under the Property Code to prepare an affidavit that the buyer can rely on in the event the HOA had (or has) refused to provide a resale certificate as provided by statute. As it stands it would be helpful to your buyer for you to provide an affidavit that the alleged deficiencies/conditions complained of by the HOA corporation have existed for more than four years. For future reference, Tex. Prop. Code §207.004 provides a remedy for you: PROPERTY CODE CHAPTER 207. DISCLOSURE OF INFORMATION BY PROPERTY OWNERS' ASSOCIATIONS
Often, the "resale certificate" provided by the HOA corporation (or its management company) will not be compliant with the law in any event even after you make the request as provided under 207.004. Common deficiencies include failure to provide a signed resale certificate or providing a resale certificate signed by an entity with no authority to prepare or execute such documents. "Why?" you ask? Well the only benefit to a homeowner or buyer is the estoppel effect of a resale certificate and it isn't in the financial interests of the managing agents or HOA attorneys to generate any document that would preclude these vendors from being able to gin up litigation at a later date.
Frequently, the "resale certificate" will not include the items required by statute such as a copy of the certificate of insurance. Accordingly, you can provide the buyer with the affidavit set forth in 207.004 and you are both better off. The HOA corporation can't enforce absurd restrictive covenants nor hold up your sale trying to extort performance it could never get from a court proceeding.
There is a 4 year statute of limitations on enforcing deed restrictions.
If "maintaining the original plan" was actually required by the restrictive covenants, the HOA corporation lost the ability to enforce any such restriction once 4 years passed.
Although it seems you have obtained a resale certificate, you have the ability under the Property Code to prepare an affidavit that the buyer can rely on in the event the HOA had (or has) refused to provide a resale certificate as provided by statute. As it stands it would be helpful to your buyer for you to provide an affidavit that the alleged deficiencies/conditions complained of by the HOA corporation have existed for more than four years. For future reference, Tex. Prop. Code §207.004 provides a remedy for you: PROPERTY CODE CHAPTER 207. DISCLOSURE OF INFORMATION BY PROPERTY OWNERS' ASSOCIATIONS
Often, the "resale certificate" provided by the HOA corporation (or its management company) will not be compliant with the law in any event even after you make the request as provided under 207.004. Common deficiencies include failure to provide a signed resale certificate or providing a resale certificate signed by an entity with no authority to prepare or execute such documents. "Why?" you ask? Well the only benefit to a homeowner or buyer is the estoppel effect of a resale certificate and it isn't in the financial interests of the managing agents or HOA attorneys to generate any document that would preclude these vendors from being able to gin up litigation at a later date.
Frequently, the "resale certificate" will not include the items required by statute such as a copy of the certificate of insurance. Accordingly, you can provide the buyer with the affidavit set forth in 207.004 and you are both better off. The HOA corporation can't enforce absurd restrictive covenants nor hold up your sale trying to extort performance it could never get from a court proceeding.
Thanks soooo much, this is very helpful information!
The HOA corporation can't enforce absurd restrictive covenants nor hold up your sale trying to extort performance it could never get from a court proceeding.
With all due respect, I have seen closings canceled due to unresolved HOA challenges in my state. I know the OP is in a different state.
With all due respect, I have seen closings canceled due to unresolved HOA challenges in my state. I know the OP is in a different state.
The laws in Texas apply in this case. The OP was provided a route to render the HOA impotent in this arena. It's common for HOA corp management companies to jeopardize a closing in order to try to extort money (for themselves) or performance that the HOA corp could not legally obtain in court. The route given above is one approach for dealing with them.
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