This is a quasi-legal question, so it may be moved somewhere else, but there should be a factual answer. You are not my lawyer, I am not your client, yada yada. I realize that laws vary by state, so I’m just looking for a general answer. I happen to live in Montana.
Two years ago I moved into a community covered by a Home Owners Association (HOA). We knew when we bought the house there was an HOA, and we assumed it was a Mandatory HOA. When we closed on the house there were no CC&Rs to sign. Having purchased 5 properties in the past that had CC&Rs that seemed odd, and I brought it up with the title company. They said they had contacted the HOA but were told there were no documents to sign. I went home and wondered what had happened and realized that what had once been a Mandatory HOA must have become a Voluntary HOA, which means I didn’t have to join if I didn’t want to. Voluntary HOAs are fairly rare, and it didn’t make sense given that all of the surrounding HOAs in our area were mandatory. I was confused.
To make a long story short, I learned that there had once been a large HOA that had been broken up into 5 smaller ones. Before we purchased, the HOA that my house belonged to apparently canceled the old CC&Rs before they got everyone to sign the new ones. Without 100% participation, they no longer had a Mandatory HOA and it turned into a Voluntary HOA. This all happened before we purchased the house and that’s why the title company didn’t have anything for us to sign.
Since we purchased the house we’ve had a few run-ins with the HOA President, and as a result, we decided not to sign the CC&Rs. As of today, of the 24 property owners, 21 have signed the new CC&Rs and 3 haven’t.
Finally, here’s my question. If for some reason I had signed the CC&Rs and learned later I didn’t have to sign them could I then opt out of them, or would signing them mean I was forever part of the Voluntary HOA? I get the feeling that some of my neighbors who signed the new CC&Rs now want to get out of them. Can they simply opt out since it’s a Voluntary HOA?
This definitely feels like an IMHO question. I think you are a bit confused about what makes an HOA an HOA. Under Montana law, a “Homeowners’ association” is
(i) an association of all the owners of real property within a geographic area defined by physical boundaries which:
(A) is formally governed by a declaration of covenants, bylaws, or both;
(B) may be authorized to impose assessments that, if unpaid, may become a lien on a member’s real property; and
(C) may enact or enforce rules concerning the operation of the community or subdivision; or
(ii) an association of unit owners as defined by 70-23-102 subject to the Unit Ownership Act.
That last bit in paragraph (ii) essentially refers to condo associations and doesn’t really apply to single-family homes. So, among the defining features of an HOA is that its rules are binding and enforceable on the people who live in the bounds. The thing that makes it binding on them, and the subsequent owners of the property, is that, at some point, the owners agreed to CC&Rs or acquired a property that was already subject to the CC&Rs. There isn’t some sort of “non-binding” or voluntary HOA, as that term is ordinarily used, under Montana law. That said, your neighbors can all form a club, agree to certain rules, and abide by them as they choose. I won’t stop them from calling it a “voluntary HOA” if they would like.
I don’t know what your neighbors signed so I don’t know what they did but, in general, if they signed CC&Rs that created an HOA, from that date forward, compliance with the HOA rules is no longer “voluntary.” The HOA requirements are built into the CC&Rs they signed. Those obligations also carry forward to new owners of the property. People can’t just decide on a whim that they don’t like the HOA and want to drop out. That’s the whole point of the HOA.
I don’t know what you mean when you say that without 100% participation, it turned into a voluntary HOA. Even if fewer than 100% of the homeowners agreed to join the HOA by signing the CC&Rs, the bounds of the HOA could be defined as all the other homes in the neighborhood. Those willing to join could have their HOA with all the other willing participants. Maybe crappy drafting of the legal documents meant that the CC&Rs are only binding if all the property owners sign. Again, I don’t have the documents so I don’t know.
I think either your neighbors are in an HOA that was constituted by the CC&Rs or they are not in any HOA at all, as that term is used in Montana law. Reading what they signed and talking to a lawyer is probably a good idea for them.
I plan to talk to an attorney at some point, but I was just curious if someone signed the CC&Rs for this non-binding HOA they could then opt out later if they wanted. I never saw the CC&Rs so I don’t know what they say.
Usually, when you buy in an HOA you are forced to sign the CC&Rs at closing. As I said, that didn’t happen in my case. I am not a member of the HOA, but nevertheless, the HOA still exists around me. It’s not a club, it’s a state-registered HOA with bylaws and CC&Rs. Since I wasn’t forced to sign CC&R’s, and nobody who buys a property on my street will be forced to sign, it’s effectively a voluntary HOA, whether it’s legally called that or not.
If I am reading what @Tired_and_Cranky posted right, Montana law will define someone as a member of an HOA as anyone who lives with a certain geographical area.
I would be shocked if nothing more than a clerical error or oversight means someone is not beholden to the rules of the HOA. Even if you did not sign it I think you still have to abide by their rules and regulations and pay whatever fees they impose. Presumably they could prove you knew the HOA existed before you purchased your home (so it was not some after-the-fact surprise).
I live in a condo and the thought that some owners would not have to pay assessments or abide by building rules because someone forgot to make them sign a piece of paper is scary. It would become a big mess. I would also suggest it is unethical for the owner to do that. They are getting a free ride and making everyone else deal with it.
But, as already mentioned, the best advice is to go talk to an attorney versed in this law.
I’m going to withdraw the question and contact a lawyer. I’ve lived in my house for over 2 years and the HOA Board has been desperately trying to get me to sign the CC&R’s. If I automatically became an HOA member by the fact that I live in my neighborhood they wouldn’t care whether I signed or not. As I explained earlier, the HOA hadn’t registered the new CC&Rs at the time I bought my house and the previous ones had expired. That was a huge mistake on the part of the HOA, but it wasn’t a “clerical error”.
Last year I built a kyack rack about 5 feet from the canal where my dock is located. I applied for a permit from the County Conservation District to build it even though building it was strictly against the CC&Rs which require a 20-foot setback from the canal. How do I know? Because the HOA President told me in writing on a number of occasions. He even tried to stop me from getting the permit by going to the County and protesting it. Nonetheless, I got the permit and the HOA is now powerless to do anything about it.
If you buy a property in a neighborhood that doesn’t have a valid HOA, and a year later an HOA is formed, they can’t force you to sign the CC&Rs. They can make the new owner of your property sign them when you sell, but they can’t make you because there were no CC&Rs at the time you purchased the property.
CC&Rs are a contract between the homeowner and the HOA that you normally sign at closing. Since I never signed them the HOA has no jurisdiction over my property. 3 other property owners refused to sign the new CC&Rs and are also NOT members of the HOA. I understand this is a rare situation, but trust me it does happen.
BTW, I pay the quarterly dues to the HOA because I am receiving services such as snow plowing, and not paying wouldn’t be right whether I was a member or not. You don’t have to believe me, but that’s the way it is.
How would they “force” them? I always understood an HOA was a covenant (Fortunately AFAIK no such thing outside of condos in Canada) . If that covenant is not tied to the title, then it cannot be imposed from outside unless a law forces it to be.
I also thought HOA’s were created when the subdivision/development was first created from a single property, not imposed after the fact?
The old joke about faculty politics apparently applies equally to HOA’s…
Q: Why is the politics so vicious?
A: Because the stakes are so petty.
Since you’re going to talk to a lawyer anyway, I’ll throw out my speculation that paying dues may make you a member of the HOA and subject to their rules. I’d guess at the end of this you have the sign the CCRs and play by their rules.
I wouldn’t be. Part of the reason HOAs can push homeowners around is the stone cold fact that the homeowner signed the contract agreeing to let the HOA push them around. Not having a signed contract is much more than a clerical error, it’s a complete lack of any binding agreement to abide by the HOAs rules.
This is your point of confusion. CC&Rs are not “non-binding.” The whole point is that they are binding on the person who signed them and also on all subsequent holders of the land (with some limited exceptions, like a mortgage holder who loaned money secured by the property before it was subject to the CC&Rs and forecloses after). The CC&Rs aren’t binding on you because they weren’t attached to your land when you bought it and you never agreed to them.
Not quite. When you take title, if there is an HOA, you take title subject to the CC&Rs that created and empowered the HOA. The new holders don’t sign the CC&Rs; they are stuck with them whether they specifically agree with them or not. You should, as part of the title search process (or however it works in your state) be told about the HOA and receive disclosure. If you don’t receive the disclosure, you may have a claim (check Montana’s laws, I’m tired) against some or any of: the title insurance company due to the cloud on the title; a non-disclosure claim against the seller (or less likely, against the real estate agent); or a malpractice claim against your attorney. But you don’t escape the HOA’s authority.
But none of this applies to you since the HOA didn’t exist when you bought the property. You can only be bound by the HOA if you agree to the CC&Rs.
You didn’t sign. Your property isn’t bound to the HOA. Your neighbors did sign. If this is a validly constituted HOA, their properties are bound into the HOA for the duration of its existence and your neighbors, and the new buyers of their properties, are stuck with it. Again, those buyers don’t have to “sign” anything.
Yes, but only if all the owners in the defined geographical area have agreed to be part of the HOA. No owner can have a new HOA forced on them without signing the CC&Rs. That seems to be the problem here, possibly for the HOA.
The process to form a new HOA in Montana should look like this. Neighbors get together and decide to form an HOA. They all agree to sign the appropriate CC&Rs. If some neighbors want in and others don’t, the documents should include in their defined geographical bounds only the boundaries of the properties whose owners agree to be in it.
I think one of two things happened here: (1) The HOA documents in the OP’s neighborhood defined a boundary that included the OP’s property (and those of certain of his withholding neighbors) but nobody bothered to get the OP’s or the other withholding neighbors’ assent to the CC&Rs. The HOA has learned that not only are the OP and the other withholders not bound by it, but that the HOA itself may not be validly constituted because it doesn’t have the assent of 100% of the people within its defined bounds. As a result, the members are treating it as a “voluntary” HOA, but the HOA is still trying to force people to pay common charges and stick to certain unenforceable rules. The HOA may be in a legally precarious position here. If they can get the rest of the homeowners in the defined boundary (including the OP) to agree to join the HOA, it will presumably become binding on all of them. Hence the pressure on the OP to join. If this is the case, and the HOA isn’t validly constituted, even the neighbors who signed the CC&Rs may not actually be bound by them. The OP asked whether his neighbors could get out of the HOA. The real question is whether there is currently a valid HOA that they are in today.
(2) Alternatively, the defined bounds of the HOA may include only those properties whose owners agreed to sign and did sign the CC&Rs. (This is what should have happened). The OP’s property is outside the bounds, so he is not stuck with paying dues. The OP can do things like build a kayak rack without the HOA’s assent. The neighbors see that he doesn’t need the HOA’s approval and he doesn’t have to pay dues (though he does voluntarily) but he can free ride on all the HOA restrictions on the other homeowners. His neighbors can’t park unregistered cars on their lawns, let their weeds get too high, or build a bunch of unsightly kayak racks without HOA approval. The OP gets all the benefits of the HOA (neighbors with better-kept homes) with none of the cost or hassle of membership (in economic terms, he is a free rider). The other homeowners stuck with the HOA want the OP’s deal, but it’s too late for them.
The OP phrased his question as his neighbors trying to get out of the HOA but his real question seems to be that the HOA is trying to get him in and he doesn’t want to join. IMHO, the HOA can’t force him (unless there is some equitable argument that he could be forced to join. I don’t see it, but he should consult with a knowledgeable Montana attorney).
This has nothing to do with clerical error: There was no disclosure to make to the OP when he bought the property because the HOA didn’t exist. It only came into existence after he purchased his property and they want him to join The OP doesn’t want to join and, IMHO, he doesn’t have to join.
You don’t have to worry about this The covenants to comply with the condo association run with the land. They are binding on all the owners of the property, however they might get the property in the future. The new owners don’t have to agree to anything to be bound by the HOA rules in your case.
True. This seems to be the position you are in.
Not true, because the HOA can’t include properties whose owners didn’t agree to join the HOA. Again, confirm my understanding with a Montana lawyer, but whoever buys your property cannot be forced to join the HOA unless you join it.
This is my understanding too.
Generally, HOAs are created by a developer who owns all the land but they can also be formed at any other time with the consent of 100% of the landowners in the property. It seems the latter is the HOA in the OP’s community tried, and perhaps failed, to do.
This is actually one of my concerns in the OP’s fact pattern too. The good news is that the statute of frauds generally requires real estate transactions (like joining an HOA) to be in writing. He didn’t sign anything joining the HOA so I don’t think he will be deemed to have joined on the basis of voluntarily paying dues but he should tell his lawyer this fact as well.
I’ll bet he doesn’t.
The original homeowner signed the CC&Rs; the later homeowners are stuck with them regardless of whether they sign. To which homeowner are you referring?
If the HOA is valid, and you haven’t joined after a time I wonder;
Could they stop accepting your money and simply refuse to provide you with the services and benefits that are afforded to members, whatever those may be? Maybe they don’t plow in front of your house or don’t renew your boat permit or something.
Some HOAs are responsible for trash pickup or lawn maintenance, and they could certainly stop doing that if he didn’t pay. My hunch is that the HOA couldn’t really stop plowing in front of his house because it would also block the road for the HOA members who want his part plowed too, so this would be an idle threat. He doesn’t need permits from the HOA to do anything; he needs them from the city or county, and the HOA has nothing to do with issuing them.
If there is an HOA in place, and you purchase a property that is part of that HOA, you must sign the CC&Rs at closing and you can’t opt-out, otherwise, you would end up with a patchwork of properties, some that belong to the HOA and some that don’t belong, and I have never seen that in the 40 years I’ve been buying properties. Except for the property I am in now, I have always been forced to sign the CC&Rs at closing. If I didn’t sign, I didn’t close. I’m talking about California and Montana. I can’t speak for anywhere else.
Yes, HOAs are usually created when the subdivision is created, but they can be established long after the subdivision was created if 80% of the homeowners vote for it.
No, the HOA can’t stop garbage collection. If they did I would just take my garbage to the local green box site like I did the first 10 years I lived here. This isn’t a gated community. The HOA doesn’t control access to my street, and even if they did it wouldn’t matter since they have no control over what I can and can’t do to access my property.
HOAs provide value to a homeowner by restricting the behavior of others, not by restricting your own behavior. I wouldn’t sign one if I didn’t have to, especially if everyone else had already signed, I get all the benefits, none of the downsides.
Does this mean your HOA could just dissolve the current HOA, then re-establish it with an 80% vote (assuming the three who are not in it are enough to not get 80%) and then rope you in whether you like it or not?