We needed to hire the services of an attorney in order to establish the Bylaws for our subdivision and have retained Gasper Gammicchia for our legal representation. With his counsel, we would like to clarify some of the confusion regarding the legal nature of the Declaration of Covenants and Restrictions and Bylaws which we, as homeowners in the subdivision, are bound by. This letter will attempt to clarify these issues.
In September of 2000, the current Board of Directors was elected to represent the Association. Since that time, the Board has met formally to review the needs of the subdivision members.
The Declaration of Covenants and Restrictions for our subdivision (“Declarations”) was created by the developer before any of our homes were built and sold. The Declarations “run with the land”. That is, each lot in the subdivision is bound by these Declarations. From the time each original owner of each lot in the subdivision closed on their lot, each owner was required to comply with the Declarations, and each subsequent owner is also required to so comply.
The title insurance commitment which each lot owner received prior to closing on their lot gives notice to the owners that the Declarations run with the land. There is no requirement that a copy of the Declarations be given to a potential owner of a lot by the Title Company, the developer or the builder. Each lot owner, however, is bound by the Declarations whether they received a copy of them or not.
The purpose of the Declarations is to create and maintain a uniform and harmonious character of the subdivision as a whole per the developer’s vision. Many lot owners were given advice by their respective builders of the nature and effect of the Declarations or their interpretation of same, but the developer’s directions, as put in writing in the Declarations, is the only relevant and controlling dictate.
The Association is created by the Declarations to, among other things, enforce the Declarations after the developer transfers to the Association, his sole right to govern. The developer of our subdivision has transferred his governing rights to our Association.
Up to the time of transfer of control, the developer had the sole right to make decisions on the interpretation of the Declarations. Any permission given by the developer to lot owners to maintain a building or condition on a lot is binding on future Boards of Directors of the Association. After transfer of control by the developer, the Association Board is required to make decisions as to interpretation and enforcement of the Declarations.
The Bylaws were created pursuant to the Declarations and approved by the majority of the members qualified to vote. The Bylaws further interpret the Declarations and provide rules for conducting Association member and board meetings and contain other relevant details.
Since our election as a Board, we have discovered there are many violations of the Declarations. Irrespective of the reasons these violations have not been responded to in the past, this Board is obligated to respond if requested. We have heard from many members of the Association concerning those items of violations that are most troubling to the majority of members, and we plan on giving priority to those violation issues.
In the future, we will seek the comments of subdivision members as to the priority they feel should be given to such outstanding violations. This Board will attempt to address violation issues that are most troubling to the majority of subdivision members first. The ultimate decision, however, will rest with this Board.
The decisions of a Board such as this one will not make everyone happy, but we must make those decisions based on a community viewpoint attempting to maintain harmonious subdivision appearance while promoting optimum property values.
It is also important to note association assessments are required to be paid annually by each lot owner so that the needs of the subdivision can be met. As required by the Declarations, the Board must enforce the obligation of lot owners to pay the same and to collect assessments in arrears so that the community as a whole can benefit thereby.
The Declarations allow the placing of a lien into the chain of title to a lot if its owners are in violation of the requirements of the Declarations. This lien can be foreclosed on in a court of law, and the lot and house thereon can ultimately be sold to remedy the violations. All costs and legal fees can also be collected and paid from the sale proceeds.
The utmost interest and purpose of your elected Board is to serve the best interests of our subdivision as a whole so that everyone’s investment is protected and maximized, and the enjoyment of our community is enhanced.