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Wismer

"applicable laws"

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Hi. Can someone please let mean know what is meant by these two words "applicable laws", that are contained in our CC&R's, but there is no reference anywhere in the CC&R's (not in the DEFINITIONS section, etc) as to what laws is the document referring to, or mean, specifically. There is no definition of "applicable laws" in the Bylaws either. I am making an assumption that "applicable laws" is a general legal statement in docs that means County laws and/or State laws, since I do not understand the content found within CC&R's to be "laws". (e.g. County Zoning Ordinance or Building Code Ordinance, etc). Thx.

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9 minutes ago, Wismer said:

"applicable laws" is a general legal statement in docs that means County laws and/or State laws,

You got it right.  However, the County Zoning Ordinance and Building Code Ordinance are also laws since they were authorized by a statute creating the County or City.

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Thank you! We are considering subdividing, and a representative of the County Development Services Department told me that it can often help with the county applications if the HOA board shows prelim written support of such endeavors. We asked the board (who we THOUGHT we had a good community based relationship with), and they wrote a snotty letter back stating that they would not support our endeavor, with lots of illogical and unreasonable statements surrounding the CC&R general item they bold faced: "No further subdivision. No Building lot may be further subdivided, nor may any easement or other interest therein, unless such subdivision complies with all applicable laws.". I.e. They are operating as if they have the power to stop someone from subdividing, over and above the series of public hearings that have to take place anyway. Also, their response letter reads "as if" we were making an architectural committee request to them vs "this is a good will request letter to mention our hopes to subdivide". 

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1 hour ago, Wismer said:

Can someone please let mean know what is meant by these two words "applicable laws", that are contained in our CC&R's, but there is no reference anywhere in the CC&R's (not in the DEFINITIONS section, etc) as to what laws is the document referring to, or mean, specifically.

 

Without the context of where this two word term appears int he CC&Rs, it's not really possible to say much other than that the meaning of "applicable laws" is laws that are applicable (which is obviously circular and, therefore, meaningless).

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Hi pg1067.

 

re: Without the context of where this two word term appears int he CC&Rs, it's not really possible to say much other than that the meaning of "applicable laws"

 

The HOA board directed my attention to the following CC&R item ...

 

Article IV "General and specific restrictions", Item 4.4 "No further subdivision. No Building lot may be further subdivided, nor may any easement or other interest therein, unless such subdivision complies with all applicable laws."

 

Context....

 

We are considering subdividing, and a representative of the County Development Services Department told me that it can often help with the county applications if the HOA board shows prelim written support of such endeavors.

 

We asked the board (who we thought we had a good community based relationship with), and they wrote a snotty letter back stating that they would not support our endeavor, with lots of illogical and unreasonable statements surrounding the CC&R general item they bold faced:

 

"No further subdivision. No Building lot may be further subdivided, nor may any easement or other interest therein, unless such subdivision complies with all applicable laws.".

 

I.e. They are operating as if they have the power to stop someone from subdividing, over and above the series of public hearings that have to take place anyway.

 

Also, their response letter reads "as if" we were making an architectural committee request to them vs "this is a good will request letter to mention our hopes to subdivide". 

 

Thus my question, what is the generally accepted legal meaning of "applicable laws", when there are no definitions stated in the CC&R's, nor the Bylaws.

 

 

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12 minutes ago, Wismer said:

The HOA board directed my attention to the following CC&R item ...

"No further subdivision. No Building lot may be further subdivided, nor may any easement or other interest therein, unless such subdivision complies with all applicable laws.".

I.e. They are operating as if they have the power to stop someone from subdividing, over and above the series of public hearings that have to take place anyway.

I have bolded different parts of their response.  It sounds to me as if you are interpreting the second sentence as if it said, "Building lot[s} may be subdivided if they comply with all applicable laws." and that is not what it says.  Apparently the Board is not going to send a nice letter approving of your proposed subdivision.  It seems to me they have a strong argument that no subdivision is permitted.

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Thank you! I had not looked at the sentence syntax from that perspective. I suppose it is ambiguous for a reason. The CC&R's use the "unless" word a lot. So if I understand you correctly,  in all cases in the doc, everything after any "unless" usage is not helpful at all to HOA members.

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1 hour ago, Wismer said:

The CC&R's use the "unless" word a lot. So if I understand you correctly,  in all cases in the doc, everything after any "unless" usage is not helpful at all to HOA members.

Since I have never seen the CCR's I  would not be inclined to make such a general statement. "All general statements are false, including this one."

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6 hours ago, Wismer said:

No further subdivision. No Building lot may be further subdivided, unless such subdivision complies with all applicable laws.".

 

Just for giggles I took out the phrase about easements and other interests and what is left does suggest that a lot may be subdivided if that subdivision complies with whatever county or city laws apply to subdividing lots.

 

Next question: Is there anything anywhere in the CC&Rs requiring HOA approval for any modifications of a property?

 

 

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Hi. Thank you.

 

re: Is there anything anywhere in the CC&Rs requiring HOA approval for any modifications of a property?

 

Providing I understand your question correctly, I would answer "yes", because the CC&R's have entire section "architectural committee" ("the architectural committee shall consider and act upon any and all proposals or plans and specifications"). Currently, the HOA board is the architectural committee. I would think that the CC&R's, and thus the powers of the architectural committee, would only apply to the new property created with its own title, provided we are approved to subdivide by the county, and made it through all of the public hearings.The only mention of the word "subdivision" is the statement I provided earlier, that started my questions on "applicable laws". There is no reference to the concept of subdividing whatsoever in the architectural committee section.

 

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Just throwing out there that this subject was previously addressed in a thread started by "susanwilliams," and I assume you're either the same person posting under a different screen name or related to that person.

 

 

 

P.S. My prior response is unchanged:  "applicable laws" means all state and local laws governing subdivision of real property.

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2 hours ago, Wismer said:

I would think that the CC&R's, and thus the powers of the architectural committee, would only apply to the new property created with its own title

 

You would like to think that but you would be wrong.

 

2 hours ago, Wismer said:

There is no reference to the concept of subdividing whatsoever in the architectural committee section.

 

Yes there is. The reference is to

 

2 hours ago, Wismer said:

any and all proposals or plans and specifications

 

"Any and all" means that anything you do to your property that changes it from the homogeneity of the HOA is going to require approval of the HOA.

 

 

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Hi. There is new information on this topic that I would like to share, in hopes for additional opinions.

 

Upon a followup visit to the county recorder, we have discovered that there does exist an amendment to the CC&R's, that has been signed and notarized and properly filed.

 

Specifically (quote unquote) , an item in the amendment reads:

 

"4.3 No Further Subdivision below 2.0 Acres. Architectural Committee will approve any request to subdivide a 5 acre lot to 2 2.0 acre lots if request meets applicable laws."

 

Our intention is to submit an architectural committee request for our proposed subdivision.

 

Do you feel that our HOA Board of Directors can find a way to block us on moving forward, providing we adhere to the "applicable laws" (county and state)?

 

Thx.

 

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Are you subdividing a 5 acre lot into two parcels of at least 2 acres?

 

If you are, then the Architectural Committee should have to approve it because of the word "will" in that amendment.

 

But, as before, you are taking one sentence out of context so you'll need to see if there are any conditions that effect that approval.

 

48 minutes ago, Wismer said:

Do you feel that our HOA Board of Directors can find a way to block us on moving forward, providing we adhere to the "applicable laws" (county and state)?

 

Our feelings don't count.

 

If the HOA Board doesn't approve, you'll have to hire a lawyer and litigate the matter. I'm guessing that you are subdividing because it's an opportunity to make a lot of money. When you are in a position to make a lot of money when others can't, they get jealous and try to stop you. That's when you have to hire a lawyer. Make sure your money making idea is budgeted for a lawyer if it becomes necessary.

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Is there a reason why you're ignoring my question about your apparent relationship to the person who posts under the screen name "susanwilliams"?

 

 

1 hour ago, Wismer said:

Do you feel that our HOA Board of Directors can find a way to block us on moving forward, providing we adhere to the "applicable laws" (county and state)?

 

No one on this or any other internet message board knows what abilities your HOA board or any of its members have.  Nor has anyone here read your CC&Rs and HOA by-laws.  Therefore, any opinion you obtain from anyone here about this will be inherently unreliable.  If you want to make a particular use of your property and are concerned whether that use is prohibited, take the CC&Rs and by-laws to a local attorney for review and advice.

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Then you're good to go unless there is something in the addendum that imposes conditions on that approval. If there isn't the Board has not choice but to approve it and if they don't approve you'll end up going to court to override the decision. Be prepared for that since they are already giving you a hard time on it.

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Hi.

 

re: "will approve any request to subdivide a 5 acre lot to 2 2.0 acre lots"

 

Can I reasonably assume that the spirit of the law of this statement means that initial lots that are "around" 5 acres,  i.e. say from 4.5 to 5.5, can split off 2 acres?

 

It is interesting math in that 2 x 2 acre (=4) < 5.

 

So I hope to reasonable assume it means "approximately" 2 acres (i.e. if we tried to subdivide 2.3 acres) that it would still be approved.

 

Thx.

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1 hour ago, Wismer said:

Can I reasonably assume that the spirit of the law of this statement means that initial lots that are "around" 5 acres,  i.e. say from 4.5 to 5.5, can split off 2 acres?

 

No. You cannot assume that. Courts rule on the exact wording of the document when that wording is clear and unambiguous.

 

That sentence is poorly worded but part of it is clear and unambiguous - A 5 acre lot makes approval mandatory. Smaller than 5 acres would make approval optional.

 

1 hour ago, Wismer said:

It is interesting math in that 2 x 2 acre (=4) < 5.

 

So I hope to reasonable assume it means "approximately" 2 acres (i.e. if we tried to subdivide 2.3 acres) that it would still be approved.

 

Somebody goofed there but I think splitting out 2.3 acres from a 5 acre lot would be enforceable if the board denied.

 

There is plenty of room for dispute so, as I suggested earlier, make sure you have money set aside for a lawyer when you proceed with this project.

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