Q: I live in a subdivision with recorded deed restrictions that address the use of the property, but the restrictions have no provisions for the establishment of an HOA, maintenance assessments, dues, or fines. The developers recorded a letter of authority to the HOA that states that the homeowners “may” join the HOA.
The HOA has created bylaws that purport to automatically make every homeowner in the community a member, and has begun invoicing owners for dues. The HOA is also notifying closing attorneys that dues are owed and should be collected at closing. The HOA and letter of authority transferred no real property, and common areas of the subdivision are all in the public right-of-way. The subdivision does have entrance signs, irrigation, and lights on the signs that the HOA maintains. Is it legal for this HOA to impose mandatory dues, fees, assessments, or fines with no authority to do so appearing in the recorded deed restrictions for the property?
A: In general, HOAs have only the purposes and authority that are granted to them by state statutes, the recorded declaration of covenants, conditions, and restrictions (the CCRs), the bylaws, and the HOA’s articles of incorporation. For an HOA to impose mandatory assessments on lot owners, the CCRs must specifically indicate that owners are subject to assessments by an HOA just by virtue of owning a lot in the deed-restricted community. If your CCRs do not have language mandating the payment of assessments or membership in an HOA, then those obligations cannot be imposed upon you without your written consent.
Based on your reference to a recorded “letter of authority,” there may be more to your story. I suggest that you engage an experienced real-estate attorney to review all of the recorded documents before concluding that you are not obligated to pay assessments or be a member of the HOA.
This column was originally published in the Charlotte Observer on February 3, 2017. © All rights reserved.