Reader Questions - Two Homeowners Want Out, One Wants InApr 22, 2019
Is there a way to get out of our three member HOA? Our home stands alone. The other two are connected. Thank you for your comment on this!
K.N., Santa Barbara
I assume your association was established as a condominium project. Most likely the developer wanted to put more homes on the land than the zoning and Subdivision Map Act would allow. Condominiums are often a way to place more homes in a smaller space. Small associations are often pinched between the increasingly complex and burdensome Davis-Stirling Act and the cost of hiring professional management and legal counsel to navigate the Act. Most very small associations operate largely in disregard of the Act, typically more like a partnership than an association. If the three properties cannot meet the requirements of separate independent lots, it may be impossible to disband the association. It would certainly take agreement of all three owners and each of their mortgage lenders to make that change. Check with a real estate attorney in your area to find out if this is possible.
Dear Mr. Richardson,
How can I resign from the HOA as an owner?
A common interest development (aka “homeowners association”) automatically is joined when one becomes an owner in that development. That happens by virtue of the recorded covenants on the property which “run with the land” and are a contract binding the owner even though the owner never signed it. To exit the contract one must cease to own the land on which the CC&R’s are recorded, meaning the only way to “quit” the HOA would be to sell your property.
Thanks for your question,
Hello, I enjoy the column regarding community association advice. The homes in our neighborhood were built in the 1980’s and the CC&R’s were issued to the original home buyers. The restrictions have not been enforced and there has not ever been an HOA. The CC&R’s state they renew automatically. Is there a way the CC&R’s can be put into practice or enforced?
Depending upon what the CC&R’s say, the neighborhood may in fact already be a common interest development. CC&R’s normally would recite that association membership is mandatory and state the type of the HOA (typically planned development or condominium). If membership is mandatory then under Civil Code 4200 it is a common interest development. The CC&Rs will also provide the legal name of the association, so one can check the Secretary of State records to check if the HOA is a corporation. Use www.businesssearch.sos.ca.gov for this and also to check if the corporation was suspended – after all these years it probably was.
Even if the neighbors all abandoned operating the association a long time ago, the CC&R’s are still a covenant binding all of the owners together. Ignoring covenants on the land is never a good idea. However an attorney expert in HOA law will need to analyze the situation to see if the failure to enforce the CC&Rs all these years has rendered them incapable of enforcement. Any homeowner, as well as the association, can under Civil Code 5975 enforce the CC&R’s, so that question is important.
Written by Kelly G. Richardson
Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.