Cohousing-L Mailing List: RE: Changing condo docs, etc.

[Rowenahc (rowenahc]

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)