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Brent Blanchard
Brent Blanchard, Lawyer
Category: Real Estate Law
Satisfied Customers: 1905
Experience:  Thirteen years of experience in real estate matters, HOA disputes and drafting HOA documents
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This question is for Law Pro. This is a question regarding

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This question is for Law Pro. This is a question regarding Pennsylvania Law and Homeowner Associations.

The Association in which I live was declared in the 1980s by the builder and built before the passage of the Pennsylvania Uniform Community Act. In 2003, the association (which had be transferred to homeowner control years previously) amended the Declaration and Bylaws to bring them into conformance with the UPCA.

The association is comprised of town-homes and received local township and county approval as a multi-family residential development The units are all listed in the amended Declaration by Uniform Parcel Identifier.

Here's the question: By what legal mechanism does a homeowner who purchases a home within this development become a mandatory member of the Non-Profit Corporation? The deeds for the individual units make no mention whatsoever about being a part of the corporation other than to say in the meets and bounds description: "bounded and described according to a plan entitled Title Plan of Complex XX made for [construction company name or association name - they have the same name], dated...."
One purchases a house here and they are told they are a member of the association by the 2003 Amended Declaration but the deed to the home is silent on the matter. The original 1986 Declaration by the builder did not list house numbers or UPI numbers, it only stated that there were 204 units in the association.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Wendy-Mod replied 1 year ago.
Hi, I am a moderator for this topic. I sent Law Pro a message to follow up with you here, when he is back online. If I can help further, please let me know. Thank you for your continued patience.

Regards,
Wendy
Customer: replied 1 year ago.

Not a problem, everyone deserves some time off.

Expert:  Wendy-Mod replied 1 year ago.
Thank you for your understanding.
Expert:  Brent Blanchard replied 1 year ago.

Thank you for your question. Since it appears that LawPro is still offline and no one else has chimed in, I will be happy to help.

 

I cannot give a firm legal opinion on your specific situation not just because of the Terms of Service here and the fact that I don't have the entire deed, but also because not having a title report in front of me keeps me from having enough information to say "yes" or "no" to the legality of what you have been told. But I can tell you how it *could be* legal. Many people can then pore over their own title reports and see where the key document(s) are supposed to be. Even then, there can be defects that make one thing originally invalid, countered by other facts (including passage of time) that can for all intents and purposes "cure" any defects.

 

All well-written deeds will include language of some sort saying ". . . subject to all encumbrances [and something else, specific words vary--saying easements, burdens, covenants or such] of record." IF the Declaration of Covenants Codes and Restrictions for the HOA was done correctly, something in there will make it apply to every specific parcel in the project. So, A + B = C (covered by HOA), even if B (the deed) does not mention the HOA by name. This can apply even if the land was subdivided after the HOA was formed, IF (and usually only if) either 1) the parent parcel was included in the original Declaration, or 2) the parcel was "annexed" into the HOA properly.

 

I just got a ruling from a judge last week saying that such is the case for a specific neighborhood. The lots were annexed after the Declarant sold them to another developer.

 

This should help you sort it out.

Thank you.

BAB.

Customer: replied 1 year ago.

It has been some time since you answered and I wanted to thank you.


 


To make sure I understand your answer, if someone has a deed that makes no mention of being part of an HOA nor has the phrase ". . . subject to all encumbrances...", that doesn't necessarily mean it is free and clear of being part of an association, having easements against it, etc. In other words just because I don't know there are other documents out because my deed doesn't mention these obligations doesn't let me off the hook.


 


What prevents me from filing false claims on other people's property? As an example, suppose I were to file a easement against my neighbor so I can use his driveway?


 


Or here's another one, can an HOA file an amended declaration approved by a 66% general vote that redefines my part of my deeded property as common element property or limited common element property?

Expert:  Brent Blanchard replied 1 year ago.
Thanks for coming back. Please don't forget to leave a positive rating so I can receive credit for my work.

Sorry, the answer is no. ". . . subject to. . ." means that whatever is generically described sticks to the land regardless of whether or not the buyer (or anyone else who receives the property) actually knows what those things are.

If it's ". . . subject to xyz of record. . .", then a search on that piece of land in the public record will reveal the un-named but generically described encumbrance. That's what title reports are for, and that's why we hire title search professionals instead of doing it ourselves--even attorneys. A mis-spelled name in the recorder's index can make an amateur search fail to find something that is legally "of record".

Usually, a good conscience, good manners, and not wanting to be bothered with a quiet title lawsuit is enough to keep most people from recording bogus encumbrances against other peoples' property. But no, there's not some "title police" agency that reviews documents and arrests people who record, for instance, a mechanics' lien when they are not a licensed contractor and have no statutory right to do so. But people who DO file bogus encumbrances often enough get ordered to pay the landowner's attonrey's fees! AFTER a lot of weeping and wailing and gnashing of teeth associated with getting a suit and a motion and a hearing (or heaven forbid, a trial) if the bogus filer is too insane to un-do the deed and make things right.

And some states have special laws allowing for expedited hearings and quickie trials for wrongful lien actions.

Finally, what you describe as the mandatory membership in a nonprofit corporation called an HOA gets imposed on people all the time--just by purchasing the land within the scope of a valid HOA Declaration. It's only a step or two up from the 1800s tradition of "restrictive covenants" where buying land in a certain area included a covenant "running with the land" to never house slaves in the main house, only in back or outbuildings. That sort of thing did happen, and the abolition of slavery and other developments like civil rights legislation (There WERE also covenants to never sell to a non-white person well into the 20th Century!) never legally removed those covenants from the land--they just made them unenforceable.

I hope that this explains some of the ins and outs of real property law.

Thank you.

BAB.
Brent Blanchard, Lawyer
Category: Real Estate Law
Satisfied Customers: 1905
Experience: Thirteen years of experience in real estate matters, HOA disputes and drafting HOA documents
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