Real Estate Law

Have Real Estate Law Questions? Ask a Real Estate Lawyer.

Ask a Lawyer,
Get an Answer ASAP!

Real Estate Law
This answer was rated:

In one of the articles of the by-laws of my HOA there is the

following: "The Lessee shall be bound...
In one of the articles of the by-laws of my HOA there is the following:
"The Lessee shall be bound in all respects by the provisions contained therein. Any default by a lessee of such provisions which is not cured within 10 days' written notice from the Board to the owner and the lessee, shall entitle the association to terminate the lease, and the lot owner hereby irrevocably appoints the association as its attorney-in-fact (which appointment is coupled with interest) to take all actions necessary to terminate the lease ...."
My question is, will the court accept the declaration of covenants as an attorney in fact document, and accept the HOA as part to the lease contract, which it was not party to in the first place?
Show More
Show Less
Ask Your Own Real Estate Law Question
Answered in 14 minutes by:
8/25/2017
Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 7,556
Experience: 29 years of experience in General Practice, Real Estate Law and Estate Law.
Verified

Welcome and thank you for your question. I will be the professional that will be assisting you.

Ask Your Own Real Estate Law Question

Because there is an association the Covenants, Conditions and Restrictions (CC&R's) are record in the county where the HOA is situated. Therefore, these HOA governing documents run with the land and would apply to any tenant. The Tenant should have been advised that there was an HOA. If that was not disclosed that is an issue between the landlord and the tenant.

Ask Your Own Real Estate Law Question
Customer reply replied 3 months ago
Well these are just proposals as of now. But I find it absurd that the court will take the HOA's word that there was a default, and that it was properly served, and that it was uncured in time, and that they are the attorneys-in-fact, all in one swoop without a shred of evidence.

HOA's are a nightmare. Based on the recorded documents that run with the land they have a great deal of power. That being said, if there is a valid defense a Judge would certainly take that into consideration.

What is happening?

Ask Your Own Real Estate Law Question
Customer reply replied 3 months ago
A catastrophe. They came up with pages upon pages of revisions, and if they pass the owners will have almost no control over their properties, and can foreclosed upon, and it is all at the soul discretion of the Board, and all their decisions are final. It is a chapter from Orwell, mixed with some Aldous Huxley.

The HOA Board needs to remember that they have a fiduciary duty to the owners which means they MUST act in the best interests of the owners. If they are not the owners have the option of removing them and /or suing them.

What do your governing documents set out as the requirements for the amendment (revision) process?

Ask Your Own Real Estate Law Question
Customer reply replied 3 months ago
Is there something I can do to circumvent this?
I am leasing my house, and I need to keep leasing it. They are imposing an artificial 10% cap also, at their discretion.
Could I sign a long term lease with somebody I trust, with the right to sublease?
Customer reply replied 3 months ago
67% of the vote. But the voting process is not defined. Usually the management company, count the votes and that is it. The management company is in their pocket and they have no scruples.

Yes, you can ask them for a variance. You base this on the fact that your purchase of your property was to have a solid investment. Unless the governing documents state otherwise you could set up a long term lease.

Is there anything in the documents requiring board approval for tenants?

Amending HOA governing laws http://www.wardandsmith.com/articles/residential-planned-communities-and-condominiums-changing-restrictive-covenants

Ask Your Own Real Estate Law Question

You can report the management company to the State. Give me a moment to provide some information for you.

Ask Your Own Real Estate Law Question
Ask Your Own Real Estate Law Question
Ask Your Own Real Estate Law Question
Customer reply replied 3 months ago
Not as of yet. But the proposed revisions, do. They will require 3 weeks notice, a copy of the contract, and they reserve the right to change the terms, they want to be able to run a background check on the prospective tenant, and reserve the right to decline his candidacy. There does not seem to be a requirement that they explain the decline. As you say, it is a nightmare.
Customer reply replied 3 months ago
But I have no evidence. They destroy the ballots after counting them.

"§ 47F-2-117. Amendment of declaration.

(a) Except in cases of amendments that may be executed by a declarant under the terms of the declaration or by certain lot owners under G.S. 47F-2-118(b), the declaration may be amended only by affirmative vote or written agreement signed by lot owners of lots to which at least sixty-seven percent (67%) of the votes in the association are allocated, or any larger majority the declaration specifies or by the declarant if necessary for the exercise of any development right. The declaration may specify a smaller number only if all of the lots are restricted exclusively to nonresidential use.

(b) No action to challenge the validity of an amendment adopted pursuant to this section may be brought more than one year after the amendment is recorded.

(c) Every amendment to the declaration shall be recorded in every county in which any portion of the planned community is located and is effective only upon recordation.

(d) Any amendment passed pursuant to the provisions of this section or the procedures provided for in the declaration are presumed valid and enforceable.

(e) Amendments to the declaration required by this Chapter to be recorded by the association shall be prepared, executed, recorded, and certified in accordance with G.S. 47-41. (1998-199, s. 1; 2012-18, s. 1.8; 2013-34, s. 5.)

§ 47F-2-118. Termination of planned community.

(a) Except in the case of taking of all the lots by eminent domain (G.S. 47F-1-107), a planned community may be terminated only by agreement of lot owners of lots to which at least eighty percent (80%) of the votes in the association are allocated, or any larger percentage the declaration specifies. The declaration may specify a smaller percentage only if all of the lots in the planned community are restricted exclusively to nonresidential uses.

(b) An agreement to terminate shall be evidenced by the execution of a termination agreement, or ratifications thereof, in the same manner as a deed, by the requisite number of lot owners. The termination agreement shall specify a date after which the agreement will be void unless it is recorded before that date. A termination agreement and all ratifications thereof shall be recorded in every county in which a portion of the planned community is situated and is effective only upon recordation.

(c) A termination agreement may provide for sale of the common elements, but may not require that the lots be sold following termination, unless the declaration as originally recorded provided otherwise or unless all the lot owners consent to the sale. If, pursuant to the agreement, any real estate in the planned community is to be sold following termination, the termination agreement shall set forth the minimum terms of the sale.

(d) The association, on behalf of the lot owners, may contract for the sale of real estate in the planned community, but the contract is not binding until approved pursuant to subsections (a) and (b) of this section. Until the sale has been concluded and the proceeds thereof distributed, the association continues in existence with all powers it had before termination. Proceeds of the sale shall be distributed to lot owners and lienholders as their interests may appear, as provided in the termination agreement.

(e) If the real estate constituting the planned community is not to be sold following termination, title to the common elements vests in the lot owners upon termination as tenants in common in proportion to their respective interests as provided in the termination agreement.

(f) Following termination of the planned community, the proceeds of any sale of real estate, together with the assets of the association, are held by the association as trustee for lot owners and holders of liens on the lots as their interests may appear. All other creditors of the association are to be treated as if they had perfected liens on the common elements immediately before termination.

(g) If the termination agreement does not provide for the distribution of sales proceeds pursuant to subsection (d) of this section or the vesting of title pursuant to subsection (e) of this section, sales proceeds shall be distributed and title shall vest in accordance with each lot owner's allocated share of common expense liability.

(h) Except as provided in subsection (i) of this section, foreclosure or enforcement of a lien or encumbrance against the common elements does not of itself terminate the planned community, and foreclosure or enforcement of a lien or encumbrance against a portion of the common elements other than withdrawable real estate does not withdraw that portion from the planned community. Foreclosure or enforcement of a lien or encumbrance against withdrawable real estate does not of itself withdraw that real estate from the planned community, but the person taking title thereto has the right to require from the association, upon request, an amendment excluding the real estate from the planned community.

(i) If a lien or encumbrance against a portion of the real estate comprising the planned community has priority over the declaration and the lien or encumbrance has not been partially released, the parties foreclosing the lien or encumbrance may, upon foreclosure, record an instrument excluding the real estate subject to that lien or encumbrance from the planned community. (1998-199, s. 1.)

§ 47F-2-119. Reserved for future codification purposes." http://www.ncleg.net/EnactedLegislation/Statutes/HTML/ByChapter/Chapter_47F.html

Ask Your Own Real Estate Law Question
Ask Your Own Real Estate Law Question
Customer reply replied 3 months ago
Is there any way I can ask for the vote counting process to be observed by neutral third parties?

You can certainly request poof of the vote. Let me set out the procedures for the vote.

Ask Your Own Real Estate Law Question
Ask Your Own Real Estate Law Question
Customer reply replied 3 months ago
O.K.
It says 76% of the signatures, does the vote counting count as equivalent to signature?
Customer reply replied 3 months ago
It is usually difficult to find a lawyer who is willing to take on an HOA. Do you know anybody good who would be willing to take them on?
Ask Your Own Real Estate Law Question

Pursuant to the terms of service of the site I am not permitted to provide a personal referral to you. I can provide sources for finding reputable Attorneys. The State Bar Association is one resource at https://www.ncbar.org/members/lawyer-referral-service/

The other is Martindale http://research.lawyers.com/martindale-hubbell-peer-review-ratings.html

Ask Your Own Real Estate Law Question

Please do not hesitate to ask me any additional questions that you may have with regard to this matter. It would be my pleasure to continue to assist you.

If you would be kind enough to rate my service positively so I will receive credit for my work from the site I would appreciate it.

You may not be familiar with how the site works. The Attorneys to not receive credit from the site for their time or with customers unless the customer provides a positive rating. We answer your questions in good faith, hoping for a good faith response regardless of whether the law is in your favor or not. If you were unhappy with my service please let me know that you would prefer to work with another Attorney and I will opt out.

Thank you for your consideration.

Ask Your Own Real Estate Law Question
Customer reply replied 3 months ago
I was not unhappy.
But would you clarify the answer to one of my questions.
The one involving a long term lease with subletting.
At the moment there is absolutely no control on leases.
The process of the revisions has just stated, we have two meetings scheduled for Monday and Tuesday.
I do not think anything will pass before late October.
So can I in the mean time do such a long term contract, and will it stand a court test.
Customer reply replied 3 months ago
After the revisions are passed.

I don't see any reason why you could not do a long term contract, if there is nothing in the governing documents that prohibits the long term.

Ask Your Own Real Estate Law Question
Customer reply replied 3 months ago
the Board cannot void it using retroactively?

A lease is a contract that would be unreasonable for the board to interfere with a legal contract and they could be sued.

Ask Your Own Real Estate Law Question
Customer reply replied 3 months ago
O.K thank you.
I'll be sure to give the best rating.

Thank you.

Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 7,556
Experience: 29 years of experience in General Practice, Real Estate Law and Estate Law.
Verified
Attyadvisor and 87 other Real Estate Law Specialists are ready to help you
Ask your own question now

Thank you very much.

Ask Your Own Real Estate Law Question
Customer reply replied 3 months ago
The HOA wants to run a criminal Background check on all prospective lessors.
My question: Does an ex-convict lose the right to rent or buy properties, after serving his sentence, or his parole period?
Can you discriminate against such an individual?

They can run a criminal background check. People with criminal records are not a protected class of people.

Ask Your Own Real Estate Law Question

"People with criminal records aren't a protected class under the Fair Housing Act, and the guidance from HUD's general counsel says that in some cases, turning down an individual tenant because of his or her record can be legally justified" http://www.npr.org/sections/thetwo-way/2016/04/04/472878724/denying-housing-over-criminal-record-may-be-discrimination-feds-say

This is slowly heading toward changing. The rejection of a tenant needs to be reasonable.

Ask Your Own Real Estate Law Question
Customer reply replied 3 months ago
Thank you
Ask Your Own Real Estate Law Question
Customer reply replied 3 months ago
thank you

My pleasure.

Ask Your Own Real Estate Law Question
Ask Attyadvisor Your Own Question
Attyadvisor
Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 7,556
7,556 Satisfied Customers
Experience: 29 years of experience in General Practice, Real Estate Law and Estate Law.

Attyadvisor is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help.

Mary C.Freshfield, Liverpool, UK

< Previous | Next >

Meet the Experts:

Tina

Tina

Lawyer

5,436 satisfied customers

17 years of legal experience including real estate law.

Barrister

Barrister

Lawyer

11,052 satisfied customers

17 years real estate, Realtor. Landlord 26 years

Infolawyer

Infolawyer

Lawyer

7,763 satisfied customers

Experienced lawyer

Ray

Ray

Lawyer

7,532 satisfied customers

Texas Attorney for 30 years dealing in real estate

LawTalk

LawTalk

Attorney

6,207 satisfied customers

I have 30 years legal experience. Additionally, in CA I held a Real Estate Broker's license.

Dimitry Esquire

Dimitry Esquire

Attorney

5,526 satisfied customers

JA Mentor, multiple jurisdictions, specialize in business/contract disputes, estate creation & admin

Ely

Ely

Counselor at Law

4,918 satisfied customers

Qualified attorney in private practice including business, family, criminal, and real estate issues.

< Previous | Next >

Related Real Estate Law Questions
Texas real estate law question. We live in a subdivision
Texas real estate law question. We live in a subdivision where residential/agricultural restrictions expired 10 years after the subdivision had been formed. The subdivision has maintained it's residen… read more
Alex Esquire
Alex Esquire
Managing Attorney
Doctoral Degree
153 satisfied customers
The rest of my question is a real estate agent listed the
the rest of my question is a real estate agent listed the home. The listing expired in june. The owner has requested in writing that the active status is taken out of the MLS as owner has signed with … read more
Ray
Ray
Lawyer
Doctoral Degree
7,532 satisfied customers
Looking for a real estate attorney in sonoma county, that
looking for a real estate attorney in sonoma county, that can review a case that I have against well's Fargo Bank for fraud & predatory loans. … read more
N Cal Atty
N Cal Atty
Doctoral Degree
59 satisfied customers
I need a real estate lawyer who knows real estate in Oregon
I need a real estate lawyer who knows real estate in Oregon I need a lawyer who specializes in real estate law in the state of Oregon. I am quitting my current property manager and I will be managing … read more
Irwin Law
Irwin Law
Juris Doctor JD
7,063 satisfied customers
I have a real estate question. Pennsylvania, no, It involves
It involves my 90 year old mom and the transfer of her home to me...possibly… read more
LawGuy
LawGuy
Juris Doctor
123 satisfied customers
My real estate agent and i completed a real estate
my real estate agent and i completed a real estate transaction back in November of 2007. there has been a problem with the transaction and i would like to take her to small claims court. however, i wa… read more
Dave Kennett
Dave Kennett
Doctoral Degree
25,741 satisfied customers
In commercial Ohio real estate is their such an agreement as
In commercial Ohio real estate is their such an agreement as a NNN lease that is also a land contract installment which offers some type of equity ownership during or after the lease terms ?… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
Looking for a Real Estate Lawyer to come out and talk with
Looking for a Real Estate Lawyer to come out and talk with our community about HOA. The builder of our homes just turn over everything to the community with really explaining anything. We are look for… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
I have a real estate question related to Florida Real Estate
I have a real estate question related to Florida Real Estate law. … read more
LegalKnowledge
LegalKnowledge
Juris Doctor
27,776 satisfied customers
HOA association failed to maintain the roof in our
HOA association failed to maintain the roof in our California condo building properly resulting leaks. It took them 3 attemots over 2 weeks to stop the leakage. The HOA repaired and paid for the signi… read more
Damien Bosco
Damien Bosco
3,164 satisfied customers
I'm not sure this is in the realm of real estate law or
I'm not sure this is in the realm of real estate law or property rights. In any event my neighbor has landscaping and one large pine tree that is continually shedding into my pool and surrounding pati… read more
LegalKnowledge
LegalKnowledge
Juris Doctor
27,776 satisfied customers
Real estate law I'm the seller i signed real estate contract
Real estate law I'm the seller i signed real estate contract now i dont want to sell I initialed the contract instead of signing the sale price was illegible so the seller sent an amendment for me to … read more
Damien Bosco
Damien Bosco
3,164 satisfied customers
I have lived in a homeowners association in Florida. The HOA
I have lived in a homeowners association in Florida. The HOA has both long term or residential and short term sections clearly defined. I live in the short term section, we pay more than 3 times the r… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
Need a real estate expert, who understands the working of a
need a real estate expert, who understands the working of a POA-HOA, … read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
I need a real estate lawyer who specializes in HOA in Ohio.
I need a real estate lawyer who specializes in HOA in Ohio … read more
Infolawyer
Infolawyer
Lawyer
Doctoral Degree
7,763 satisfied customers
It isn't real estate law actually, it is an HOA question.
It isn't real estate law actually, it is an HOA question. Can you help with that? … read more
Barrister
Barrister
Lawyer
Doctoral Degree
11,052 satisfied customers
In eminent domain of private residences, isn't the property
in eminent domain of private residences, isn't the property owner excluded from paying Capital gains? … read more
LegalGems
LegalGems
Juris Doctorate
10,423 satisfied customers
Caltrans took mo home of 35 years by eminent domaine in 93.
Caltrans took mo home of 35 years by eminent domaine in 93. I transferred my basis to a new house which is too big for meto handle at 80. Can I transfer my basis into a lesser house without triggering… read more
Michael Bradley
Michael Bradley
JD
1,142 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x