Kelly, do you have any information regarding the expiration of CC&Rs? I’ve heard 20 years from the time of the recorded filing of the CC&Rs.  My subdivision development of homes has no common areas but does have an HOA.  The CC&Rs don’t show up in the San Mateo county recorder system. I need to confirm whether the HOA should have renewed and recorded the revitalization of the CC&Rs as they are over 30 years old.

Any information would be appreciated. O.M., South San Francisco

Dear O.M.:

Unless the CC&Rs were recorded on the property they do not automatically bind all owners, so some title research help may be needed. The recording information on CC&Rs should be reflected on title insurance policies as a coverage exception, so you may find information that way. 

In past decades, developers filed CC&Rs with expiration dates. However, CC&Rs in recent years normally do not have expiration dates, or included automatic renewal. Associations with expired CC&Rs do not fall under the Davis-Stirling Act, because Civil Code Section 4200(a) requires, among other things, a recorded declaration for the Act to apply. This can be a calamity for larger communities, since reinstating the CC&Rs requires the consent of all members and mortgage holders. Research is needed to determine if the CC&Rs were ever recorded (filed with the County Registrar-Recorder). If the CC&Rs have not expired, take the necessary steps to amend the document and delete the expiration date. If the document has expired, legal help will be needed to explore the available options.

All HOAs, and particularly HOAs older than 30 years, should note whether their CC&Rs ever expire.

Sincerely, Kelly

Hi, Mr. Richardson,

I am on the board of a small HOA. I am new to this so I truly appreciate and learn so much from your column.

We are having a slight existential crisis because our Articles of Incorporation state our HOA name but the CC&Rs do not mention the name at all. So, our board is confused if the HOA only exists to care for the common area or if we are to uphold the CC&Rs even though we have no document linking the two. I assume that the two are linked but some of my colleagues need more explicit proof. 

N.P., Placentia

Dear N.P.:

When creating new HOAs, developers file Articles of Incorporation with the State separately from filing the CC&Rs with the county Registrar-Recorder. The Articles document the creation of a new legal entity, a corporation, to be the HOA.

An attorney should review your HOA documents. The CC&Rs contain a legal description of the property contained in the association project and apply to all properties contained in that description. Also, a lawyer or paralegal can retrieve your association’s subdivision map or condominium plan (a public document filed with the Registrar-Recorder) to confirm which lots are within the subdivision and then which lots are owned by the HOA. Hopefully the ownership of common lots will reflect the HOA name as listed in the Articles of Incorporation. Since your HOA is small, it should be easier to amend the CC&Rs to identify the name of the association. That requires a vote of all your members, which is usually easier in smaller associations.

Best regards, Kelly

 

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to Kelly@rodllp.com. Past columns at www.HOAHomefront.com. All rights reserved®.

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