|RE: Changing condo docs, etc.||<– Date –> <– Thread –>|
|From: Rowenahc (rowenahccs.com)|
|Date: Fri, 8 Dec 2000 17:00:43 -0700 (MST)|
Somehow I missed the original post, but since I am a lawyer I thought I would butt in anyway. Most states have two levels of documentation for a condominium association. One is the Deed and the other may be called Bylaws or have some other name (CCs?). There are also Rules and Regulations. In general, the R&Rs do not have to be filed in the registry but are referred to in the Deed and Bylaws which are filed in the Registry. Because they are not filed, changing rules and regs is not a very big deal. Changing a Bylaw is a nuisance because it involves a new filing; changing a deed is a Big Deal because also it requires involving all the lenders. Now, there is no reason why the original documents cannot be written to accomodate cohousing principles - for instance consensus and right of first refusal on sale - provided that you also provide for a fall-back to majority vote. The banks are really only interested in stuff that may impact the financial viability of the association. If your lawyer won't accomodate you - find a new one! I put our documents up on the Cambridge Cohousing web-site as a starting place for others. Keep the smaller stuff - e.g. pets, allowable uses, rentals and parking - out of the formal documents. If you want rules, make them Rules and Regs which can be modified by the usual coho process. Most states require that there be some kind of Design Review for physical changes, so you will have to include that requirement. But how you actually implement it is up to you. Finally, as others have pointed out, the formal requirements only become significant if someone challenges how things are being done. As long as people feel heard and their issues are dealt with you don't need to get too concerned with formal procedures except where MONEY is concerned! Gotta keep the bankers happy - which means, at a minimum, proper accounting procedures and a capital account for repairs and maintenance. However, it is always a good idea to have some people around who are familiar with the filed documents and can spot those areas where there is some formality which should be observed! Rowenahc Cambridge Cohousing -----Original Message----- From: cohousing-l [at] freedom2.mtn.org [mailto:cohousing-l [at] freedom2.mtn.org]On Behalf Of Rob Sandelin Sent: Thursday, December 07, 2000 9:14 PM To: Multiple recipients of list Subject: RE: Changing C.C and R's. (Was How do You do it?) Just to add a few things to Joani's post. Your CC&r's are what banks see that define your legal and lending credibility. Same as with your bylaws. These documents are filed usually in a county office and this is what constitutes part of your legal unit title. When a unit is sold in your development the lender makes a copy from the filed copy at the county. If you mess with these documents, you can mess up your lendability, and so unless you have very good reason to do so, don't. If you do, you need to refile the official copy with amendments at the County Office that holds the official copy. In most states you will also have to notify ALL the lenders of the change and in some places even supply all the existing lenders with copies of the changes. Lawyers and lenders create these documents to satisfy themselves, not you and this OK. In many places, there is a strict convention for these documents, which is determined by the lenders and so attorneys just make a copy of a lender approved version, and make a few changes specific to your project. You can and should mostly ignore these documents as far as the running of your community goes. These documents were designed for uncaring condo dwellers and this is not you. I have seen a few groups expend a great deal of time and legal funds making changes, which some attorneys are happy to do because they get paid by the hour, and every change to the boilerplate version will have to be run by the lenders, adding yet more hours to your bill. I have seen a few groups make an abstract of these documents, where some clever member did a digest of the document of its relevant parts. These documents tend to be written in legalese and so a translated version can be useful if you want to know what they say. The good news is, there is no CC&R police but yourselves. Even in CA and NY, which have the most regimented requirements, there is virtually no enforcement of CC&R provisions except by lenders who may ask for a copy of the annual budget or about some other aspect. Also, in most states, if you are organized under a Home owners Association law, the decisions you make in your group meetings, are legally binding as long as they do not conflict with local, county, state or federal laws. So if your group decides that every cat must wear a blue collar, and there is no conflict with other laws, then your decision is legally binding and enforceable. So, if you decide to let the landscape team decide what to plant, this is fine, but if it conflicts with your CC&R's, it is not legally enforceable IF ANYBODY TAKES YOU TO COURT OVER IT. Obviously the probability of court action on your landscaping is very low and so it's not a worry place. A wise woman once told me: Learn the law well, so you can break it carefully. Rob Sandelin Community Works! Process workshops for social change groups www.ic.org/nica/Cw1.htm -----Original Message----- From: cohousing-l [at] freedom2.mtn.org [mailto:cohousing-l [at] freedom2.mtn.org]On Behalf Of Joani Blank Sent: Thursday, December 07, 2000 1:22 AM To: Multiple recipients of list Subject: Changing C.C and R's. (Was How do You do it?) I'm not a lawyer or any kind of real estate professional, but it seems to me that with this--or any other similar provision of the CC and Rs, (except perhaps the requirement of written notice of certain kinds of events)-- the Board (which in cohousing is usually everyone in the community) should be able to simply waive the requirement for "written prior approval," and can authorize a committee or, for that matter, an individual, to do anything it wants to with whatever level of group approval it wants. In the case of landscaping for instance, you may want not want to allow a resident to plant oleander or some other poisonous plant in the "private" front or back yard, or pour a concrete slab where there is now dirt, so you might require people messing with their private space to get approval from a landscape committee. Or have the landscape committee come up with a policy for the whole group about what is and isn't okay, after the Board has authorized them to do so. Do not, if at all possible try and change the CC and R's. Bylaws are a little easier to change and House Rules should be very easy to change. But you may not need to change any of these. I expect yours is not the only group to end up with boiler plate C C and Rs. Yours may say, for instance, that Board decisions are made by majority or 2/3 vote. But you probably make decisions by consensus and don't have votes. Tsk, tsk, you might be contravening your CC and Rs. I say, respect, but don't be scared of your C C and Rs. If there is an attorney out there who thinks I'm giving out bad or risky advice, let him or her speak now. Joani Blank (who admits to never carefully reading the CC and Rs at either community she has lived in.) Old Oakland Cohousing at Swan's Market (that's our whole official name)
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