Post by BagLady on Jan 2, 2014 12:19:45 GMT -5
Comparison of
1970’s Declaration of Covenants and Restrictions
And
1986 Amended Covenants and Restrictions
Background: The 1970’s Declarations of Covenants and Restrictions are identical for all three plats in SLR so are treated here as one Original document, even though filed in 1972, 1974 and 1975.
To keep language common and consistent, the original 1970’s Declarations will be referred to as the “Original” and the 1986 Amended Covenants and Restrictions will be referred to as the “Amendment”.
A bit of clarifying info on jargon:
Plat Books/Pages are where the LOTS are recorded; this is where identifying geographic and configuration details of the lots are recorded.
The Declarations, Amendments, Bylaws, Rules and Regulations and all other documents that are NOT concerned with physical characteristics of the property are recorded in the Official Record Book and Pages.
The word “Developer” in the Original is replaced by the word “Association” in the Amendment and the word “lots” is replaced by the word “sites”. The Developer (S-bag Lake Resorts, Inc.), of course, turned over S-bag Lake to the Association to manage in 1977 so all references to it are archaic in the “1986 Amendment”.
The very first thing I noted on the Original was that it was recorded without the Plat recording information. I don’t know what to make of that except extreme carelessness by the overseer of the document. Though it refers to the land unit i.e. S-bag Lake Unit I, it does not say where the plat was recorded (i.e. the Book & Page). I guess you just have go lookin’! Not a fatal flaw but it would put a title examiner “on alert” to be vigilant for more irregularities.
The first thing I noted on the Amendment was that, while it properly referenced the plats and where they were recorded, it did not reference the Declarations specifically as to Official Record Book and Pages. Amendments must reference specifically the document they intend to change. The Amendment stated that it was referencing the Declaration recording information but, instead, recited the Plat recording information a second time in error.
Any title examiner worth their salt would not pass this one by without a comment to the employing Title Insurance Company. This is a problem for the document as it purports to amend a document that it does not identify. It is hard to believe that a competent person allowed this to stand without examination. At best, this is extreme carelessness—at worst it is a purposeful misdirection and calls into question the credibility of the entire document.
The next thing that caught my attention was that the Amendment recited that the Original contained a provision to release lots from the Covenants pursuant to the authority in the original and IN ADDITION it stated that it intended to amend “certain of the remainder Covenants and Restrictions.” Talk about a misdirection! Whatta Whopper since the Original contained no provision for authority to amend! The author did not specifically state the underlying authority to amend ie “pursuant to”…the sentence just continues on and leads one to believe that the amendment intention was referred to in the document it purports to change.
The Amendment replaced “CAMPING TRAILERS” and the extended description contained in the Original with a reference to “recreational vehicles” and reserved the right in the Rules & Regulations to change the definition of “recreational vehicles” from time to time. It continued to specifically exclude mobile homes from using the sites.
The Amendment gave permission for two recreational vehicles to be sited on a duplex site platted in Unit II but did not specifically identify these sites. (Curiously, it did not name the lots nor did it require the duplex sites to pay extra assessment fees.) It continued to give Association the authority to approve exterior modifications.
The Amendment removed certain restrictions on the use of camping sites which would refer more to a transient campground than a “permanent” siting of a recreational vehicle.
The Pets provisions are identical, restricting pets to dogs, cats and birds in reasonable numbers kept under control and not become a nuisance.
The “hedges” provision is expanded to permit the Association to approve all improvements and equipment allowed on site. The “Signs” provision is identical. The “easement” provision is nearly identical but added a 20’ easement along the back lines of named sites-no reason stated.
The prohibition of outside toilets is essentially identical. The prohibition of “nuisance” is identical. The prohibition on “commercial activity” is unchanged. The provision on prohibiting activity on a site that would increase the insurance or interfere with rights of others is identical.
There are just a few changes on enumerating the amenities that make up common property; some updated language and the addition of several facilities. The authority of the Association to levy assessments for the “...actual cost of operating and maintaining all the activities…” is unchanged.
OK now we get to #14 on the Amendment—which “replaced” #17 on the Original. This is a new provision which states:
Note that the missing Amendatory provision has been added to the Amendment but the Original did not give it the authority to amend—only to release.
This begs the question. “Why would this language be added if it was already present in the Original superior document?” The answer is not rocket science. The sly attorney drawing up the Amendment was playing fast and loose with the Covenant to give it what it was missing—an amendatory provision.
The “restrictions running with the land” provision binding all successors is identical.
The Amendment deleted the superfluous provision prohibiting using property contrary to Rules and Regulations which was contained in #13.
The archaic Amendment was removed in which the Developer retained right to make changes to restrictions and covenants via contract or deed (moot since the Developer was long gone and no longer selling contracts and conveying deeds.)
The provision giving Developer right to transfer or assign development activities was removed for same reason as above i.e. no longer developing the subdivision and it is not applicable to Association-managed property.
My Analysis:
It appears that the purpose of the Amendment was to cure the “duplex lot” question. The Original limited One Vehicle to each lot; the Amendment specifically gave Duplex lots permission to house TWO vehicles. Other changes were updates to archaic references and minor language changes except for the new provision giving the Association the authority to amend covenants. My guess is that the absence of the amendatory provision was discovered after SLohA requested the change for the duplex lot issue—in much the same manner that the initiative to record a belated Notice of Preservation was undertaken as a result of MANBOD’s desire to amend the Declaration for provide for manufactured housing on the property.
The last thing I noticed was that the Certification of Adoption on the Amendment was not ATTESTED TO: by the Corporate Secretary, as is usual, nor were there were any witnesses to the Officers’ signatures. The Notary did not acknowledge the identification used to verify identities in the absence of witnessing signatures. The signatures themselves are not accompanied by the printed name and address as is required on documents encumbering real property. I think there may be other flaws in the execution of the document but am not sure as laws seem to change rapidly in this area.
It is unknown how these several “mistakes” would be interpreted by any title examiner. Most of them are easily cured by statute but taken as a “group” along with omission of the specific referral to the underlying document being amended--which is required by chain of title-- and the misrepresentation of the authority to amend—even a non-professional would might say “No Way!
Disclaimer: I am not an attorney and the above is provided for informational and educational purposes and should not be relied upon. Consult an attorney for legal advice.
Jan 2014
1970’s Declaration of Covenants and Restrictions
And
1986 Amended Covenants and Restrictions
Background: The 1970’s Declarations of Covenants and Restrictions are identical for all three plats in SLR so are treated here as one Original document, even though filed in 1972, 1974 and 1975.
To keep language common and consistent, the original 1970’s Declarations will be referred to as the “Original” and the 1986 Amended Covenants and Restrictions will be referred to as the “Amendment”.
A bit of clarifying info on jargon:
Plat Books/Pages are where the LOTS are recorded; this is where identifying geographic and configuration details of the lots are recorded.
The Declarations, Amendments, Bylaws, Rules and Regulations and all other documents that are NOT concerned with physical characteristics of the property are recorded in the Official Record Book and Pages.
The word “Developer” in the Original is replaced by the word “Association” in the Amendment and the word “lots” is replaced by the word “sites”. The Developer (S-bag Lake Resorts, Inc.), of course, turned over S-bag Lake to the Association to manage in 1977 so all references to it are archaic in the “1986 Amendment”.
The very first thing I noted on the Original was that it was recorded without the Plat recording information. I don’t know what to make of that except extreme carelessness by the overseer of the document. Though it refers to the land unit i.e. S-bag Lake Unit I, it does not say where the plat was recorded (i.e. the Book & Page). I guess you just have go lookin’! Not a fatal flaw but it would put a title examiner “on alert” to be vigilant for more irregularities.
The first thing I noted on the Amendment was that, while it properly referenced the plats and where they were recorded, it did not reference the Declarations specifically as to Official Record Book and Pages. Amendments must reference specifically the document they intend to change. The Amendment stated that it was referencing the Declaration recording information but, instead, recited the Plat recording information a second time in error.
Any title examiner worth their salt would not pass this one by without a comment to the employing Title Insurance Company. This is a problem for the document as it purports to amend a document that it does not identify. It is hard to believe that a competent person allowed this to stand without examination. At best, this is extreme carelessness—at worst it is a purposeful misdirection and calls into question the credibility of the entire document.
The next thing that caught my attention was that the Amendment recited that the Original contained a provision to release lots from the Covenants pursuant to the authority in the original and IN ADDITION it stated that it intended to amend “certain of the remainder Covenants and Restrictions.” Talk about a misdirection! Whatta Whopper since the Original contained no provision for authority to amend! The author did not specifically state the underlying authority to amend ie “pursuant to”…the sentence just continues on and leads one to believe that the amendment intention was referred to in the document it purports to change.
The Amendment replaced “CAMPING TRAILERS” and the extended description contained in the Original with a reference to “recreational vehicles” and reserved the right in the Rules & Regulations to change the definition of “recreational vehicles” from time to time. It continued to specifically exclude mobile homes from using the sites.
The Amendment gave permission for two recreational vehicles to be sited on a duplex site platted in Unit II but did not specifically identify these sites. (Curiously, it did not name the lots nor did it require the duplex sites to pay extra assessment fees.) It continued to give Association the authority to approve exterior modifications.
The Amendment removed certain restrictions on the use of camping sites which would refer more to a transient campground than a “permanent” siting of a recreational vehicle.
The Pets provisions are identical, restricting pets to dogs, cats and birds in reasonable numbers kept under control and not become a nuisance.
The “hedges” provision is expanded to permit the Association to approve all improvements and equipment allowed on site. The “Signs” provision is identical. The “easement” provision is nearly identical but added a 20’ easement along the back lines of named sites-no reason stated.
The prohibition of outside toilets is essentially identical. The prohibition of “nuisance” is identical. The prohibition on “commercial activity” is unchanged. The provision on prohibiting activity on a site that would increase the insurance or interfere with rights of others is identical.
There are just a few changes on enumerating the amenities that make up common property; some updated language and the addition of several facilities. The authority of the Association to levy assessments for the “...actual cost of operating and maintaining all the activities…” is unchanged.
OK now we get to #14 on the Amendment—which “replaced” #17 on the Original. This is a new provision which states:
14. “These Covenants and Restrictions may be amended or released provided said amendment or release is approved by written ballot by the owners of not less than three-fourths (3/4) in number of the lots shown on the above-described plats."
Note that the missing Amendatory provision has been added to the Amendment but the Original did not give it the authority to amend—only to release.
This begs the question. “Why would this language be added if it was already present in the Original superior document?” The answer is not rocket science. The sly attorney drawing up the Amendment was playing fast and loose with the Covenant to give it what it was missing—an amendatory provision.
The “restrictions running with the land” provision binding all successors is identical.
The Amendment deleted the superfluous provision prohibiting using property contrary to Rules and Regulations which was contained in #13.
The archaic Amendment was removed in which the Developer retained right to make changes to restrictions and covenants via contract or deed (moot since the Developer was long gone and no longer selling contracts and conveying deeds.)
The provision giving Developer right to transfer or assign development activities was removed for same reason as above i.e. no longer developing the subdivision and it is not applicable to Association-managed property.
My Analysis:
It appears that the purpose of the Amendment was to cure the “duplex lot” question. The Original limited One Vehicle to each lot; the Amendment specifically gave Duplex lots permission to house TWO vehicles. Other changes were updates to archaic references and minor language changes except for the new provision giving the Association the authority to amend covenants. My guess is that the absence of the amendatory provision was discovered after SLohA requested the change for the duplex lot issue—in much the same manner that the initiative to record a belated Notice of Preservation was undertaken as a result of MANBOD’s desire to amend the Declaration for provide for manufactured housing on the property.
The last thing I noticed was that the Certification of Adoption on the Amendment was not ATTESTED TO: by the Corporate Secretary, as is usual, nor were there were any witnesses to the Officers’ signatures. The Notary did not acknowledge the identification used to verify identities in the absence of witnessing signatures. The signatures themselves are not accompanied by the printed name and address as is required on documents encumbering real property. I think there may be other flaws in the execution of the document but am not sure as laws seem to change rapidly in this area.
It is unknown how these several “mistakes” would be interpreted by any title examiner. Most of them are easily cured by statute but taken as a “group” along with omission of the specific referral to the underlying document being amended--which is required by chain of title-- and the misrepresentation of the authority to amend—even a non-professional would might say “No Way!
Disclaimer: I am not an attorney and the above is provided for informational and educational purposes and should not be relied upon. Consult an attorney for legal advice.
Jan 2014