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KJL LAW
KJL LAW, Arbitrator
Category: Real Estate Law
Satisfied Customers: 1536
Experience:  Attorney at Law Office of KJLLAW
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My neighborhood wants to start an HOA. Covenants were put in

Customer Question

My neighborhood wants to start an HOA. Covenants were put in place by the builder. I have lived here 7 years. The state is Alabama. Can I be forced to join. There is a agreement to join the existing HOA in a neighbor connected to ours on my deed. This existing HOA would not let any homeowners in my neighbirhood join theirs when I moved here.Would I have to join that one if the neighborhood chooses to join theirs and not start their own.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  KJL LAW replied 1 year ago.
Good morning. The covenants on the deed are controlling and cannot be changed. So, if your neighborhood chooses to join the HOA connected, then you must also join as per the deed. The only for you to not join, would be if the covenant in your Deed allows you to opt out of joining, which is unlikely. I hope this helps with your question.
Customer: replied 1 year ago.
You did answer the question regarding if we started our own HOA would I have to join.
Customer: replied 1 year ago.
Sorry you did not answer the question regarding the neighborhood starting their own HOA and not going in the one on the deed.
Expert:  KJL LAW replied 1 year ago.

If there are no restrictions in the deeds/covenants you can Under Alabama law start your own HOA, However, you must have a majority of the homeowners who have the covenants in their deeds to agree to form a new HOA. To start, you must file the Certificate of Formation of your Homeowners' Association with the Alabama Secretary of State:

You will need to obtain a Name Reservation from the Office of the Alabama Secretary of State prior to filing your formation documents and need to file the original and two copies of the Homeowners’ Association Certificate of Formation with all attachments required in the form and the Name Reservation Certificate in the County Probate Office where the development is located. You must use this form to file a Homeowners’ Association Certificate of Formation.

When you file the Certificate of Formation of your Homeowners' Association you will also need to file, under Alabama Code §35-20-5, a Supplement to Certificate of Formation with the Secretary of State after the Certificate of Formation has been indexed, and a check made payable to the Secretary of State in the amount of $50.00. You will also need to send in the following:

  1. Articles of Incorporation (Certificate of Formation)
    • Bylaws, resolutions, or other governing documents of the Association
    • Current Contact Information for all Board Members

    • Conduct of Meetings of the Board

    • Information about how to obtain copies of financial records of the Board

    • Rules for maintaining public areas

    • Process for granting easements, leases, licenses, and concessions of common areas

    • Rules for assessment and payment of dues

    • All associated governing rules

    • Certification from signee that the Board will adhere to all applicable non-profit laws

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  2. The original covenants, conditions, or conditions or restrictions adopted by the Association
  3. Other information or documents required by Alabama Code 1975 §35-20-5(c) and listed on page 2 of the Supplement to Certificate of Formation form
  4. In addition, the origanizational documents of the Homeowners' Association may provide for the following, which may be included in any supplemental filing and are listed on page 3 of the Supplement to Certificate of Formation form.
    • Indemnification and Insurance for the Homeowners' Association, its officers, and directors
    • Fidelity bonds for any person or entity having custody or control of any funds of the Homeowners' Association
    • Periodic audits of the financial records of the Homeowners' Association
    • Power to acquire real and personal property for the benefit of the Homeowners' Association and its members
    • Power to hire and discharge managing agents and other employees, agents, and independent contractors. After all of these are filed, then the state will register and approve the HOA.
Expert:  KJL LAW replied 1 year ago.

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