Re: need help with learning legal issues in uses of common land
From: Lynn Nadeau (welcomeolympus.net)
Date: Tue, 22 Sep 1998 09:39:02 -0500
Rights and responsibilities regarding common land and facilities are 
spelled out in our CC&Rs (Conditions, Covenants, and Restrictions), 
which, along with the Bylaws are inherently attached to all deeds of 
ownership of RoseWind Cohousing lots. So even if you win a lot in a poker 
game, or inherit it, as the legal owner you are bound by the rules. 

Once it is determined what your legal structure is -- we for example are 
neither coop nor condo, but a "miscellaneous mutual-benefit non-profit 
corporation" with a Homeowners Association-- then you need to get your 
basic documents in order. Bylaws, in general, describe HOW you govern --- 
your decision making process, quorum, proxy, notification, etc, and the 
CC&Rs are more about WHAT you govern. So that's where, for example, you 
note what the really basic rules are (not the evolving policies about 
pets and meals--- just stuff that you want it to be more difficult to 
change, once set) . This might include the idea that the buck stops with 
the lot owners --- any damage to commons by a renter, guest, etc is the 
ultimate responsibility of the owner. Might say that you can't build 
unattended fires, use lawn chemicals, or park vehicles on the commons, or 
what you can only do if you have permission. The CC&Rs might define an 
architectural review process if someone wants to build a porch or shed or 
fence, or might say you can't do anything that. You can find model 
documents (including ours) on-line, through some of the cohousing 
websites. Also check locally for retirement communities, gated 
communites, etc and see if you can get your hands on a copy of their 
Covenants etc. Most are more restrictive than you would want, but it's a 
lot easier to slash out things you don't care about, than to do it all 
from scratch. There will be chunks of legal boilerplate that you have no 
idea what mean, nor if they are necessary or relevant. That's where you 
take your list of questions to a real estate lawyer. 

In our documents, we noted that unsold lots, like unopened pieces of 
street right-of-way, were subject to the same policies as RoseWind common 
lands. We did a Planned Unit Development with the City, so our contract 
for that defines our lats, but also our commons --- into the future, no 
homes can be built where we have defined it as commons, without a whole 
re-draw of the PUD.  The various things we agreed to in the PUD Agreement 
with the City are also attached to all deeds in the community. 

As for underground stuff,  when they install infrastructure, ask your 
contractor for an "as-built" map of where what is actually located,rather 
than just the plans they started with, as sometimes in the field, 
decisions are made to modify the plan, due to terrain and such. Physical 
markers on the surface are useful, also. 

I hope this and other replies will get you on a useful path. Good luck.

Lynn Nadeau, RoseWind Cohousing, Port Townsend WA

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